1.    APPLICATION.
a.    General Application. These Terms and Conditions (these “Terms”) are entered into by and between Great Western Building Systems, LLC, a Colorado limited liability company dba Great Western Buildings (“GWB”) and the buyer (“Buyer”) identified on the accompanying Purchase Order signed by GWB and Buyer (“PO”) in connection with these Terms and govern the sale of the goods and services provided by GWB to Buyer (collectively, the “Goods”). GWB and Buyer may be referred to herein individually as a “Party” and together, the “Parties”.
b.    Entire Contract. These Terms, the PO, and any subsequent change order to the PO (“Change Order” and collectively with these Terms the PO, and any amendments or modifications thereto, this “Contract”) comprise the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
c.    Conflict. In the event of any conflict between these Terms, a PO, and/or any Change Order, these Terms shall govern, unless the PO or Change Order expressly states that the terms and conditions of the PO or Change Order shall control over these Terms. Notwithstanding anything herein to the contrary, if a written contract signed by both Parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. If GWB provides drawings that are approved by the Buyer, those drawings shall supersede all prior drawings or other conflicting design documentation between the Parties.
2.    ACCEPTANCE OF TERMS. This Contract shall be effective immediately upon Buyer’s execution of the PO and acceptance of these Terms (the “Effective Date”). The Effective Date shall not be affected by any subsequent Change Order, unless the GWB issues new terms and conditions in connection therewith that are accepted by the Parties and that expressly supersede these Terms. The effectiveness of this Contract is expressly conditioned on Buyer’s acceptance of these Terms.
3.    PRICE.
a.    Contract Price. Buyer shall purchase the Goods from GWB at the estimated price set forth in the PO, together with any other amounts charged by GWB in connection with providing the Goods (collectively, the “Contract Price”), to be paid in accordance with the payment terms in this Contract. The Contract Price is exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any applicable federal, state, or local governmental or regulatory authority on any amounts payable by Buyer. Buyer shall be responsible and pay for all such charges, costs, and taxes upon demand by GWB; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, GWB's income, revenues, gross receipts, personnel, or real or personal property or other assets.
b.    Contract Price Changes. GWB reserves the right to increase, decrease, or otherwise modify the Contract Price at any time prior the delivery of the Goods by providing written notice to Buyer of such adjustment, if GWB determines any of the following has occurred: (i) Buyer requests a different delivery date or does not accept the delivery within two (2) weeks of receipt of the Shipping Notice (as defined below), (ii) Buyer requests a change to the Goods requiring engineering or design modifications, or (iii) labor agreements, government regulations, market conditions, unforeseen events, any Force Majeure Event (as defined below), or events outside of GWB’s reasonable control, in each case, affecting the Goods or GWB’s ability to provide the Goods. If the Contract Price should be increased by GWB before delivery of the Goods to a carrier for shipment to Buyer, then upon delivery of the GWB’s notice to Buyer of the Contract Price adjustment, these Terms shall be construed as if the increased price was originally inserted herein as the Contract Price, and Buyer shall be invoiced by GWB on the basis of such increased Contract Price.
4.    PAYMENT TERMS.
a.    Payment Method. All payments made by Buyer to GWB shall be paid in US Dollars, in immediately available funds, and in accordance with the terms of this Section.
b.    Payment Terms. On the Effective Date, Buyer shall pay to GWB a portion of the Contract Price as set forth in the PO. Unless otherwise agreed to in writing by GWB, Buyer shall pay the remaining portion of the Contract Price and any other invoiced amounts to GWB as follows:
i.    Standard Payment. Buyer shall pay GWB via ACH or bank wire the remaining amount owed by Buyer to GWB promptly upon receipt of the invoice from GWB, and in any event, no later than fourteen (14) days prior to the scheduled load date of the Goods. GWB will notify Buyer of the scheduled load date in accordance with these terms.
ii.    Special Payment Terms. If “Special Payment Terms” is selected on the signed PO (or a subsequent Change Order) and such terms are approved by GWB’s accounting department, the remaining amount owed by Buyer to GWB shall be paid at the time that is specified in the PO (payment of such amounts, “Special Payments”).Special Payments are subject to an additional $350.00 charge and must be made in the form of certified funds such as a cashier’s check. Personal or business checks will not be accepted.
c.    Late Payments. Late payments shall bear interest from the time they are due until paid at the rate of eighteen percent (18%) per annum, or the highest rate permissible under applicable law, whichever is greater. Buyer will reimburse GWB for costs incurred in collecting any late payments, including attorney’s fees, court fees, collection expenses, and other related expenses. In addition to all other remedies available under this Contract or at law (which GWB does not waive by the exercise of any rights hereunder), GWB shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for seven
(7) days following written notice thereof.
d.    No Set-Off. Buyer will not withhold payment of any amounts due by reason of any set-off of any claim or dispute with GWB, whether relating to GWB's breach, bankruptcy, or otherwise.
e.    Security. As collateral security for the payment of the Contract Price, Buyer hereby grants to GWB a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing, until all amounts owed to GWB are paid. The security interest granted under this provision shall constitute a purchase money security interest under the Colorado Uniform Commercial Code. GWB reserves the right, at any time prior to final payment, to require Buyer to provide satisfactory additional security, in any amount determined by Buyer, for performance of Buyer’s payment obligations under this Contract.
f.    Additional Goods Payment. Buyer shall pay GWB any additional amounts invoiced by GWB for any Additional Goods (as defined below), and such amount shall be paid by Buyer in accordance with the payment terms above applicable to Goods.
5.    NO RETURNS; NO REFUNDS. Except as otherwise expressly provided herein, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return any Goods. All amounts paid by Buyer to GWB pursuant to this Contract, including the Contract Price, are non-refundable.
6.    SHIPPING. Buyer may specify and use a designated freight carrier at Buyer’s sole cost, but in the absence of such specification, Goods will be shipped by the method and carrier of GWB’s choice and Buyer’s expense. Garage doors, insulation and other third-party components not included in the Goods or otherwise provided by GWB will be shipped directly from the vendor of such items. Delivery dates for such items will be determined by the vendor of those products and communicated to the Buyer. Buyer shall be solely responsible for all shipping and handling of all third-party products and components, including the unloading, installing and/or storage of third- party components. GWB shall not be liable to Buyer for any damages or delays caused during shipping.
7.    DELIVERY.
a.    Delivery Location and Date. Once finished, the Goods will be delivered within reasonable time to Buyer’s location specified in the PO, or if none, then at such location as the Parties may agree to in writing (“Delivery Location”). Delivery dates quoted by GWB are approximate only, and Buyer acknowledges that the actual time of delivery of the Goods depends numerous factors, many of which are outside the control of GWB. Accordingly, Buyer agrees that GWB will not be liable, nor will GWB be in breach of its obligations under this Contract, for any changes to the delivery date or delay in delivery of the Goods.
b.    Shipping Notice; Partial Shipments. GWB shall notify Buyer in writing, via email, or other electronic means when the Goods are scheduled for shipment and the approximate date and time of the delivery (“Shipping Notice”). GWB may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the Goods shipped whether such shipment is in whole or partial fulfillment of the PO.
c.    Non-Delivery. If GWB is unable to ship or deliver the Goods at the Delivery Location due to Buyer’s failure to provide appropriate instructions, documents, licenses, authorizations, the Minimum Delivery Area (as defined below) or comply with this Contract, then risk of loss to the Goods shall automatically pass to Buyer, the Goods shall be deemed to have been delivered and accepted by Buyer, and GWB, at its option, may store the Goods until Buyer picks them up or the Parties agree on a new delivery date or Delivery Location. Buyer shall be liable for all costs and expenses (including, without limitation, storage, and insurance), incurred by GWB in connection with the foregoing.
d.    Buyer Delivery Responsibilities. Buyer shall provide adequate area at the Delivery Location to accommodate at least an eighty (80) foot long semi- truck (cab and flatbed) for the Goods (“Minimum Delivery Area”). Buyer shall be responsible for all loading costs and shall provide adequate equipment and labor at the Delivery Location reasonably suited for timely receipt, inventory, assembly, and erection of the Goods. Without limiting the foregoing, Buyer shall be solely responsible for employing contractors and/or workmen for receiving, unloading, inventorying, assembling, installing and erecting the Goods, and for obtaining seamers and other tools not included in the Goods. GWB, at Buyer’s request or through GWB’s advertised builder network, may provide Buyer with recommendations for third party contractors and/or installers for Buyer to hire in connection with the foregoing. It is expressly understood and agreed to by Buyer that GWB shall not be responsible for any workmanship or handling of the Goods performed by third parties and that Buyer assumes all responsibility to vet and hire third parties suitable to handle the Goods on behalf of Buyer.
e.    Obligation to Inspect upon Delivery. Promptly upon delivery of the
Goods, Buyer shall inspect the Goods for any visible damage caused during transportation to the Delivery Location. Buyer shall provide written notice to GWB of any such damage, along with supporting documentation reasonably required by GWB, including but not limited to photographs, within twenty- four (24) hours of delivery of the Goods. Upon receipt of such notice, GWB, in its sole discretion and at GWB’s sole expense, may either (i) replace such damaged Goods with non-damaged Goods, or (ii) credit or refund the price charged for such damaged Goods, together with any reasonable shipping and handling expenses incurred for initial shipment of such Goods. This Section sets forth Buyer’s sole remedies with respect to Goods damaged during transportation to the Delivery Location.
f.    Obligation to Return other Materials. Upon delivery of the Goods, Buyer shall inventory and confirm that all Goods belonging to the Buyer are offloaded by Buyer, and any materials belonging to GWB are returned to GWB at its place of business. In the event materials not belonging to Buyer
are not returned to GWB or are returned to GWB damaged, it is Buyer’s sole responsibility to cure the issue within fourteen (14) days of discovery to GWB’s reasonable satisfaction. As determined by GWB, remedies to cure such an issue may include, at Buyer’s sole expense: (i) arranging prompt delivery to GWB of any wrongfully taken materials, (ii) replacing any damaged materials with the same material, or (iii) paying GWB the fair market value of the material. Until the correction occurs. If Buyer fails to correct within the 14-day cure period, GWB may suspend performance under this Contract, including by withholding any Goods not yet delivered, and refusing to provide any other Goods, services or any warranties to Buyer.
g.    Delivery Customer Service. Should Buyer have questions at the time of delivery about any Goods, other materials and/or offloading procedures, Buyer may call the GWB customer service phone number to obtain assistance. This provision shall not limit any disclaimer of warranties herein.
8.    RISK OF LOSS.
a.    If Buyer arranges for delivery of the Goods from GWB’s location using a carrier of its choosing and sole cost, Buyer acknowledges and agrees that delivery shall be made FOB GWB’s shipping dock. Accordingly, title and risk of loss shall pass to Buyer upon GWB’s transfer of the Goods to the carrier (including the carrier for delivery to GWB’s storage location if Goods are required to be stored by GWB). Buyer agrees to work with the carrier with respect to any claims for Goods damaged in transit. GWB shall not be liable for any transit delays or Goods lost or damaged in transit.
b.    If the Goods are being delivered to Buyer’s location using a carrier of GWB’s choosing, Buyer acknowledges and agrees that delivery shall be made FOB the Delivery Location. Accordingly, title and risk of loss shall pass to Buyer upon delivery of the Goods at the Delivery Location (unless the Goods are required to be stored by GWB in accordance with these Terms, in which case title and risk of loss shall pass to Buyer upon GWB’s transfer of the Goods to the carrier for delivery to the storage location).
9.    STORAGE REQUEST. If requested by Buyer in writing prior to receiving the Shipping Notice, GWB may agree to store the Goods for a period of time between the date of Buyer’s request and the date Goods are delivered to the Delivery Location (“Storage Period”). If GWB provides written notice to Buyer of its acceptance of the Storage Request, Buyer shall pay GWB a daily storage fee in an amount set by GWB at the end of the Storage Period, in addition to any costs and expenses incurred by GWB in connection with storing the Goods during the Storage Period. Buyer agrees that GWB shall not be liable for any damages, expenses, costs, or claims resulting from GWB’s storage of the Goods.
10.    NON-DELIVERY. The quantity of any installment of Goods as recorded by GWB on dispatch from GWB's place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. GWB shall not be liable for any non-delivery of Goods (even if caused by GWB's negligence) unless Buyer gives written notice to GWB of the non-delivery within thirty (30) days of the date when the Goods should have been delivered; provided that, any liability of GWB for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or, upon Buyer’s election, adjusting the invoice with respect to such Goods to reflect the actual quantity delivered to Buyer.
11.    ADDITIONAL GOODS. After the Effective Date, and subject to the approval of GWB, Buyer may elect to receive additional goods, materials, or services from GWB in addition to the Goods (collectively, “Additional Goods”). Additional Goods are available subject to a Change Order or other written agreement signed by the Parties and Buyer’s payment of fees for the Additional Goods, which shall be added to the Contract Price and payable according to the payment terms herein.
12.    MODIFICATION OF GOODS BY GWB. GWB may modify its design, process, or materials for Goods, including supplier(s) of such materials, provided that such Goods continue to meet applicable GWB specifications.
13.    BUYER’S RESPONSIBILITIES. In addition to Buyer’s other responsibilities set forth in this Contract, and unless otherwise agreed to by the Parties in writing, Buyer shall be solely responsible for:
a.    arranging and providing all necessary building permits, permit documents, performance bonds, drawings, plans, and all other site and construction documentation that are not included in the Goods or set forth in the PO, including but not limited to site plans, site surveys, site reports, mechanical design, foundation designs, architectural renderings, and landscaping;
b.    verifying, complying with, and advising GWB of all applicable building code, load requirements, and other site requirements or restrictions by applicable governing authority applicable to the Goods or delivery thereof, including, but not limited to, requirements for third party components (e.g. doors, windows, vents, etc.) set by the applicable building authority;
c.    informing GWB of any desired changes to the assumed code and loads set forth in this Contract and paying or reimbursing GWB for any additional design and material costs in connection therewith;
d.    arranging adequate third-party contractors and labor to handle the Goods after GWB’s shipment thereof, including, but not limited to, third parties for site prep, concrete, erection, HVAC, plumbing and electrical;
e.    providing adequate equipment and labor to unload and inventory the Goods at the time of delivery; and
f.    providing the Minimum Delivery Area.
Notwithstanding anything to the contrary herein, Buyer’s receipt of any information from GWB, including information concerning applicable governing authority requirements or restrictions, shall not relieve Buyer of any of its responsibilities under this Section.
14.    INSPECTION; NONCONFORMING GOODS.
a.    Inspection Period. Subject to Buyer’s obligation under Section 7.e. to promptly notify GWB of any visible damage to the Goods caused during transportation, the Goods are deemed accepted by Buyer unless Buyer gives GWB timely written notice of any Nonconforming Goods (as defined below) and supporting documentation reasonably required by GWB, including but not limited to photographs, within thirty (30) business days of delivery of the Goods or such longer period that may be agreed to by GWB in its sole discretion (“Inspection Period”). GWB may accept claims for Nonconforming Goods after the Inspection Period in its sole discretion, in which case such claims shall be handled in accordance with this Section 14.
b.    Nonconforming Goods. “Nonconforming Goods” means only either (i) the product shipped is different than identified in this Contract, or (ii) the product’s label or packaging incorrectly identifies its contents; provided that ordinary inaccuracies of shop work will not be considered Nonconforming Goods, nor will minor errors that do not prevent erection of the building.
c.    Remedy for Nonconforming Goods. If Buyer timely notifies GWB of any Nonconforming Goods during the Inspection Period, then GWB, in its sole discretion, may either (i) replace the Nonconforming Goods with conforming Goods, (ii) credit or refund the price charged for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred for initial shipment of such Goods, or (iii) provide Buyer with repair instructions and any required materials, so that Buyer may make the Nonconforming Goods conforming Goods. If GWB elects the remedy under subsection (iii) above but such remedy is rejected by Buyer, Buyer may, at is sole expense and risk of loss, return the Nonconforming Goods to the GWB facility from which they were shipped to be repaired by GWB and sent back to the Delivery Location.
d.    BUYER ACKNOWLEDGES AND AGREES THE DESIGN SPECIFICATIONS AND BUILDINGS INCLUDED IN THE GOODS ULTIMATELY AGREED UPON UNDER THIS CONTRACT ARE FULLY CUSTOMIZED AND INDIVIDUALIZED TO FIT THE BUYER’S NEEDS; THEREFORE, THE REMEDIES IN THIS SECTION ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES FOR DELIVERY OF NONCONFORMING GOODS. GOODS MAY NOT OTHERWISE BE RETURNED TO GWB WITHOUT PRIOR WRITTEN CONSENT OF GWB.
15.    TERMINATION.
a.    Material Default. In addition to any remedies provided under these Terms, GWB may terminate this Contract with immediate effect upon notice to Buyer if Buyer (each, a “Material Default”): (i) fails to pay amounts when due and such failure continues for ten (10) days after Buyer’s receipt of written notice of non-payment, (ii) attempts to cancel, anticipatorily breaches, or breaches any terms of this Contract, in whole or in part, or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
b.    Material Default Remedies. If GWB reasonably believes that there has been a Material Default, GWB may terminate this Contract or otherwise suspend further performance, including delivery of Goods to Buyer, until such Material Default is cured to GWB’s satisfaction. If this Contract is terminated due to a Material Default, GWB will be entitled to (i) cancellation charges for finished Goods and work in progress, (ii) any quantity price adjustments reflecting volume pricing quoted for quantities ordered but cancelled due to the Material Default, (iii) all costs, direct and indirect, incurred or committed by GWB as a result of the Material Default, plus (iv) the amount of GWB’s lost anticipated profits or fifty percent (50%) of the Contract price, whichever is greater (collectively, the “Default Damages”). The Default Damages shall be due and payable by Buyer to GWB within thirty
(30) days of the termination. The Parties intend that the Default Damages constitute compensation, and not a penalty. The Parties acknowledge and agree that GWB’s harm caused by a Material Default would be impossible or very difficult to accurately estimate, and that the Default Damages are a reasonable estimate of the anticipated or actual harm that might arise from a Material Default. GWB’s continued performance after a Material Default will not constitute a waiver of GWB’s rights or remedies.
16.    PROJECT HOLD/BUYER REQUESTED DELAY. Upon Buyer’s request and written approval by GWB, Buyer may delay delivery of the Goods up to one hundred eighty (180) days. If GWB approves the delay, Buyer shall pay GWB ten percent (10%) of the Contract Price as a fee so that GWB may facilitate the requested delay. Additionally, Buyer will be responsible for any increase in the cost of Goods that may occur during the delay.
17.    LIMITED WARRANTY. The Goods may be subject to GWB’s standard limited warranty (the “Limited Warranty”) issued to Buyer in connection herewith. Upon Buyer’s request, GWB will provide any applicable Limited Warranty documents to Buyer. EXCEPT AS MAY BE PROVIDED IN ANY LIMITED WARRANTY ISSUED BY GWB TO BUYER IN CONNECTION HEREWITH, GWB EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. FURTHER, GWB DOES NOT WARRANT THAT THE GOODS WILL MEET YOUR REQUIREMENTS, THAT THE GOODS WILL BE TIMELY, OR THAT THE GOODS WILL BE INSTALLED PROPERLY. GWB DOES NOT WARRANT THE RESULTS THAT MAY BE OBTAINED FROM THE GOODS, THE ACCURACY, COMPLETENESS, OR RELIABILITY OF ANY INFORMATION OR DOCUMENTATION PROVIDED BY GWB IN CONNECTION WITH THE GOODS, INCLUDING ANY INSTRUCTIONS OR MANUALS, OR THE QUALITY OF ANY GOODS.
18.    LIMITATION OF LIABILITY.
a.    Limitation of Liability. IN NO EVENT WILL GWB BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, DIMINUTION IN VALUE, OR FOR ANY SPECIAL, COLLATERAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, LIABILITIES, COSTS, OR EXPENSE OF ANY KIND IN CONNECTION WITH THIS CONTRACT OR THE GOODS, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER GWB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE AND WHETHER OR NOT BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES RELATING TO THE COST OF REMOVAL OR REINSTALLATION OF THE GOODS, ANCILLARY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, RETESTING, LABOR COSTS, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, OR BUSINESS INTERRUPTION.
b.    Maximum Liability. IN NO EVENT WILL GWB’S AGGREGATE LIABILITY FROM ANY WARRANTY, INDEMNITY, OR OTHER OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT OR THE GOODS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT BUYER PAID TO GWB FOR THE PARTICULAR GOODS SOLD UNDER THIS CONTRACT WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED.
c.    Exceptions to Limitation. Notwithstanding the foregoing, the limitation of liability set forth above shall not apply to (i) liability resulting from GWB’s proven willful misconduct, (ii) death or personal injury directly arising from GWB’s negligent acts or omissions and (iii) any other liability not excludable by applicable law.
19.    TIME LIMITATIONS FOR ACTION. Unless prohibited by applicable law, Buyer agrees that no claim, suit, or action arising out of or related to this Contract or the Goods may be brought against GWB more than one (1) year after the cause of action arose. Buyer agrees any cause of action outside such timeframe is permanently barred and shall be deemed released and waived by Buyer.
20.    GOVERNING LAW. All matters arising out of or relating to this Contract will be governed by and construed in accordance with the laws of the State of Colorado, excluding conflict of law principles that would cause the laws of any jurisdiction other than the State of Colorado to apply.
21.    DISPUTE RESOLUTION. The Parties agree to resolve any dispute, controversy, or claim arising out of or relating to this Contract or the Goods (for purposes of this Section, each, a "Dispute") exclusively in accordance with the procedures set forth below.
a.    Negotiation. The Parties will make reasonable, good faith efforts to resolve all Disputes (except Disputes requiring injunctive relief) informally by negotiation and consultation between themselves, including by holding a meeting between appropriate officers of the parties, before initiating mediation or binding arbitration. If the Parties are unable to reach an agreement of resolution within thirty (30) days of such meeting or if such a meeting cannot be arranged within a reasonable period of time, then either Party may initiate mediation in accordance with the terms below.
b.    Mediation. If the Dispute is not resolved through informal negotiations pursuant to Section 21.a. above, the Parties may submit the Dispute to mediation administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Procedures. The mediation shall occur in Grand Junction, Colorado or as otherwise agreed to by the Parties. One (1) mediator shall be chosen by the Parties from a list of qualified mediators to be provided by the AAA. If the Parties cannot agree on a mediator within ten
(10) business days, then the mediator shall be named by the AAA. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation and that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. The Parties further agree that all offers, promises, conduct, and statements, whether oral or written, made in the course of the mediation by any of the Parties, their agents, affiliates, employees, experts, and attorneys, and by the mediator and any employees of the mediation service, are confidential, privileged, and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the Parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. If the Parties do not resolve the Dispute through mediation, including, but not limited to, due to the failure of either Party agree to any settlement proposed by the mediator, then either Party may commence binding arbitration in accordance with the terms below.
c.    Arbitration. If the Dispute is not resolved through mediation pursuant to Section 21.b. above, or if the Dispute is not resolved through informal negotiations pursuant to Section 2.1.a. above and if elected by GWB in its sole discretion, the Parties shall submit the Dispute to binding arbitration administered by the AAA in accordance with its Commercial Arbitration Rules. The Parties covenant that they will use commercially reasonable efforts in participating in the arbitration. The arbitration shall occur in Grand Junction, Colorado or as otherwise agreed to by the Parties. One (1) arbitrator shall be chosen by the Parties from a list of qualified arbitrators to be provided by the AAA. If the Parties cannot agree on an arbitrator within ten (10) business days, then the arbitrator shall be named by the AAA. The expenses of arbitration shall initially be borne equally by the Parties, but the arbitrator may order the losing party to reimburse the prevailing Party for reasonable costs and attorneys’ fees the prevailing Party has incurred, along with the cost of the arbitration. A Party may enter a final decision of the arbitrator and institute judicial proceedings for the sole purpose of enforcing such a final decision exclusively in courts located in Mesa County, Colorado (the “Permitted Forum”). The Parties agree that all offers, promises, conduct, and statements, whether oral or written, made in the course of the arbitration by any of the Parties, their agents, affiliates, employees, experts, and attorneys, and by the arbitrator and any employees of the arbitration service, are confidential, privileged, and inadmissible for any purpose, including impeachment, in any other proceeding involving the Parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the arbitration.
d.    Injunctive Relief. Notwithstanding the foregoing, the Parties may immediately pursue injunctive relief for any Dispute exclusively in the courts having jurisdiction in the Permitted Forum. Buyer expressly waives any objection of venue and jurisdiction, including but not limited to arguments that such any action to resolve a Dispute has been brought in an inconvenient forum.
22.    WAIVER OF JURY TRIAL. EACH OF THE PARTIES HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS CONTRACT OR RELATED TO THE GOODS.
23.    WAIVER OF CLASS ACTION. EACH OF THE PARTIES WAIVES ANY RIGHT TO PARTICIPATE IN A CLASS ACTION, AND INSTEAD, AGREES THAT ANY AND ALL DISPUTES SHALL BE RESOLVED ON AN INDIVIDUAL BASIS USING THE DISPUTE RESOLUTION PROVISIONS IN THIS CONTRACT.
24.    INDEMNIFICATION. Buyer shall indemnify, hold harmless, and defend GWB and its managers, officers, employees, agents, affiliates, successors, and assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and reasonable attorneys' fees, that are incurred by Indemnified Party (collectively, "Losses"), made by any third party, relating to or arising under or from: (i) Buyer’s breach of this Contract, (ii) any negligence or willful misconduct by Buyer or its officers, employees, agents, affiliates, successors, permitted assigns contractors, laborers or other third parties hired by Buyer (collectively, “Buyer Personnel”), (iii) any bodily injury, death of any person, or damage to real or tangible personal property caused by Buyer Personnel, or (iv) any failure by Buyer to comply with any applicable federal, state, or local laws, regulations, or codes in the performance of its obligations under this Contract.
25.    NOTICES. All notices will be in writing and addressed to the Parties at the addresses set forth in this Contract or to such other address that may be designated by the receiving Party in writing. All notices will be delivered by personal delivery, nationally recognized overnight courier (with all fees pre- paid), facsimile (with confirmation of transmission), e-mail, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Contract, a notice is effective only upon receipt of the receiving Party (and if sent by facsimile or e-mail, one business day after transmission) and if the Party giving the notice has complied with the requirements of this Section.
26.    FORCE MAJEURE. Except for obligations of Buyer to make timely payments to GWB, neither Party will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Contract, for any failure or delay in performance due to or resulting from acts or circumstances beyond a Party’s reasonable control, including, but not limited to, acts of God, flood, fire, earthquake, explosion, governmental actions after the Effective Date, war, invasion, terrorist threats or acts, riot, or other civil unrest, lock-outs, strikes or other labor disputes or slowdowns (whether or not relating to either Party’s workforce), industrial disturbances, restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials, epidemics, pandemics or other national or regional health emergencies, or telecommunication breakdown or power outage (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event impacting GWB, at GWB’s option, (i) the time for performance (including delivery of the Goods) may, be extended in whole or in part until the Force Majeure Event no longer exists and for an additional period thereafter reasonably necessary to cure the effects thereof, and/or
(ii) a part or all of the Goods affected may be eliminated from this Contract, without any liability to GWB, and the price of the Goods under this Contract will be appropriately reduced.
27.    COMPLIANCE WITH LAW; RETENTION OF RECORDS. Buyer shall comply
with all applicable laws, regulations, rules, and ordinances, including but not limited to related to the retention of records. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Contract and for the delivery of the Goods. Under no circumstances will GWB be liable to Buyer for Buyer’s failure to retain necessary records, nor will GWB’s retention or non- retention of records act to alleviate Buyer’s duty under applicable law.
28.    ATTORNEY’S’ FEES. If GWB prevails in any action, arbitration, suit, or proceeding arising from or based upon this Contract, GWB shall be entitled to recover its reasonable attorneys' fees in connection therewith, in addition to court, arbitration costs, and other fees and expenses incurred.
29.    RELATIONSHIP OF THE PARTIES. Nothing in this Contract will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party is authorized to contract for or bind the other Party in any manner whatsoever.
30.    NO THIRD-PARTY BENEFICIARIES. This Contract is for the sole benefit of the Parties and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Contract.
31.    SEVERABILITY. If any term or provision of this Contract is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Contract or invalidate or render unenforceable. Further, if any provision in this Contract, which is held illegal, unenforceable, or invalid, would be legal, enforceable, or valid if the provision was more narrowly drawn, the offending provision shall be interpreted so as to give maximum effect to the originally drafted provision.
32.    ASSIGNMENT. Buyer will not assign any of its rights or delegate any of its obligations under this Contract without GWB’s prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations hereunder. Any attempt of assignment by Buyer is deemed a material breach of this Contract and is immediately actionable.
33.    SURVIVAL. The provisions of this Contract which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Contract, including, but not limited to, the following Sections: “Termination,” “Indemnification” “Waiver of Jury Trial”, Waiver of Class Actions”, “Dispute Resolution,” “Time Limitations for Action,” “Compliance with Law,” “Limitation of Liability,” “Governing Law,” “Notices,” “Attorneys' Fees,” “No Third Party Beneficiaries,” “Severability,” “Assignment,” and “Survival”.
34.    AMENDMENTS. This Contract may only be amended or modified in writing, including a Change Order, which specifically states that it amends this Contract and is signed by an authorized representative of each Party.
35.    NO WAIVER. No failure or delay by GWB to exercise any rights or remedy arising from this Contract will constitute a waiver of GWB’s respective rights. Similarly, GWB’s election to not assert its rights under this Contract shall not preclude GWB from asserting its rights in the future. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Contract shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy.
36.    ENTIRE AGREEMENT. This Contract constitutes the entire agreement of the Parties concerning its subject matter, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, on that subject matter.

Great Western Building Systems, LLC

1101 3rd Ave

Grand Junction, CO 81501

(800) 497-2135

contact@gwbuildings.com