Terms and Conditions of Sale Agreement and Warranty
1. Total Package Price – Defined: Base price in addition to approved alternates, drawings, fabrication, prep and processing, on-site assistance, and certified delivery. Buyer is responsible for taxes, building permits, cost of performance/payment bonds, and other fees as necessitated by federal, state or local laws not specifically stated herein. Total Package Price will also include charges to Buyer in accordance with Section 8 of this Agreement detailing additional charges for delay. Buyer acknowledges Seller is a supplier of goods and is not acting as the Buyer’s general contractor, engineer, architect, or steel erector. The following terms and conditions in tandem with the Seller’s Terms of Use for this Website (the “Terms and Conditions”) shall apply to any and all sales between Seller and the Buyer and shall not be waived, modified or amended without the express written consent of an authorized representative of the Seller. Terms contained within any other purchase order or agreement issued by Buyer conflicting with these Terms and Conditions shall be of no force and effect. All orders are subject to approval and acceptance by Seller.
2. On-Site Assistance: Though goods explicitly designed and described as do-it-yourself, Buyer has option to purchase an additional On-Site Assistance package which includes specific preparation or construction methods implemented by a Budget Home Kits dedicated crew in only the initial phases of the DIY Steel Home Assembly Course. Seller is responsible for completing the steps as specified at https://www.budgethomekits.com/assistance. Buyer understands and agrees to complete all other home assembly actions and phases independent of Seller. Buyer further understands and agrees that Seller is not liable for any losses associated with delays as stated in Section 8.
3. Conformity of Goods: Except where this Agreement may expressly provide otherwise, the specifications of the goods described herein shall be accepted as in conformity with local building and insurance codes. Upon finalizing the order as specified in the Purchase Invoice, Buyer will have received a pre-order package which includes all proprietary design and construction methodologies for Buyer to evaluate and seek approval from any and all governing authorities. Subsequent to Buyer reading about and studying the design and construction methodologies as delineated in the pre-order package, Buyer agrees that all goods furnished are deemed to be in conformity and as such, Buyer waives any and all rights to refund, reimbursement, and replacement of goods. Any non-conformity to Buyer’s state or local requirements shall be interpreted in favor of the specifications in the Agreement and shall be the responsibility of Buyer.
4. Specifications and Building Code Compliance: The specifications as detailed in the Agreement shall govern in all instances including but not limited to where the related drawings indicated a specification or addition to the contrary. The Buyer, evidenced by his acceptance of these terms herein, accepts this provision and is solely responsible for the accuracy of the specifications as detailed in the Agreement. That is, it is the sole responsibility of the Buyer to verify the specifications as contained in this Agreement to the Buyer’s drawings and local building and insurance codes for conformity, and any non-conformity shall be interpreted in favor of the specifications in this Agreement.
5. Compliance with State and Local Building Codes: It is solely Buyer’s responsibility to verify that goods and construction procedures comply with local building and insurance codes prior to final purchase. Buyer understands and agrees that local ordinances are outside of the scope of the Seller’s knowledge.
6. Variation on Conforming Goods: The goods will conform to the specifications set forth in this Agreement except that variation is permitted in quality or quantity if the variation does not affect the merchantability of the goods and is in accordance with usage of trade customs. Seller to determine variations.
7. Changes, Extras, or Discrepancies in Plans or Agreement Provisions: Buyer may request changes or add extras. Seller shall only be bound to comply with changes or extras which have been approved by Seller and a Change Order signed by the Buyer or Buyer’s agent. The Change Order shall specify the change and the Total Package Price will be modified accordingly.
8. Delay: Seller shall not be liable for any loss, cost, or damages which Buyer may suffer by reason of Seller’s delay. If any of the following events occur, Buyer shall bear the expense for delay. The events are:
a. Buyer, its agents or employees, notifies Seller to place order on “hold” until further notice;
b. Buyer delays delivery of goods after fabrication has begun.
c. Buyer does not provide all weather access to job site for the delivery of all materials and for the performance of any on-site assistance package thereby causing delay.
In the event a) above occurs, Seller may then charge Buyer whatever cost or damages Seller incurred by reason of the delay, including incidental and consequential costs. In the event b) above occurs, Seller will immediately invoice Buyer and Buyer’s payment is due upon receipt of invoice. In the event c) occurs, all logistical and other costs will be paid by Buyer.
9. Risk of Loss – Other Liability: Buyer understands and agrees that the Seller will act as the carrier of the goods as described in this Agreement. Immediately upon arrival of the goods by Seller and prior to unloading same, Buyer shall bear risk of loss as to any parts of the shipment, personal injury (i.e. for unloading) and any other liability which may occur. Seller shall not be responsible for spotting, switching, drayage, demurrage or other transportation charges unless agreed to in writing prior to delivery. Buyer acknowledges that, in purchasing this do-it-yourself product, precautions must be taken to prevent against inherent dangers found in home construction. Buyer shall hold Seller harmless from any loss, costs, claims, suits, damages, and attorney’s fees arising from any alleged or real injury (including death or total destruction) to any person or property which arises out of work performed or materials supplied hereunder.
10. Representative’s Authority: Buyer understands and agrees that no agent, employee, or representative of Seller has authority to bind Seller to any affirmation, representation or warranty concerning the goods sold hereunder or the home to be erected there from, which is not set forth herein, and Buyer further understands and agrees that any such affirmation of fact or representation made by any such agent, employee or representative which is not set forth herein shall not bind Seller.
11. Delivery and Payment: All shipments shall be F.O.B. factory. Total Package Price shall be paid by Buyer in accordance to payment terms of this Agreement. Final payment must be paid to Seller or its assigns (together with any balance due on the purchase invoice, as directed by Seller) prior to unloading shipment at its destination. Seller does not guarantee date of delivery and in no event shall be responsible for delay damages. Seller will exercise good faith in working toward requested delivery dates. No statements made by Seller’s agents or employees with regard to delivery dates shall be binding to Seller. Buyer is responsible for demurrage charges for Seller’s truck line. Payment may be required immediately upon receipt of invoice by Seller and prior to Buyer’s receipt of home kit in accordance with Section 8. Buyer shall inventory the materials at the time of delivery or waive any discrepancies.
12. Option of Seller to Deliver in Installments: Seller may exercise the option to deliver goods in two or more installments as Seller shall elect, though Seller makes a concerted effort to deliver total package all in one shipment.
13. Limited Warranty: Seller warrants only that its products are free from defects in materials and workmanship on the date of shipment from its factory. The Seller’s obligations under this warranty shall be limited to repairing or replacing (but not dismantling and installing) such products which prove to be defective within one (1) year from the date of the original shipment by Seller, provided, however, Buyer has performed maintenance for the general upkeep of the steel home. As a condition precedent to the effectiveness of the foregoing warranty, the Steel Home System must be assembled within 120 days of the date of shipment from Seller’s factory and must be erected in strict accordance with Seller’s procedures and guidelines as stated in both its online and printed version of the DIY Steel Home Assembly Course. Damage due to faulty or improper erection by others, misuse and abuse, lack of proper maintenance, normal wear and tear, and any other circumstance not directly attributable to the negligence or willful misconduct of the Seller shall NOT be covered. Any products repaired or replaced shall be subject to warranty only for the remainder of the time applicable to the original period. THERE ARE NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE OF THIS AGREEMENT, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND SELLER SHALL NOT BE RESPONSIBLE FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSS OF ANY KIND WHATSOEVER. Seller shall determine whether correction of any defect or failure under this warranty shall be by repair or replacement. Seller’s liability shall not arise unless repairs are made under the supervision, or with written approval, of Seller. Shipping costs incurred in returning defective material shall be paid by Seller if such shipment is authorized in writing by Seller. Title to any returned materials shall pass immediately to Seller. This warranty does not cover products, accessories, parts, or attachments that are not manufactured by Seller except to the extent of any replacements or reimbursements that are obtained pursuant to any warranty given Seller by the original manufacturer. This warranty is specifically non-assignable and non-transferable. Notwithstanding the foregoing, installation of materials shall unequivocally constitute acceptance of materials.
DISCLAIMER OF WARRANTY—THE ABOVE WARRANTY DOES NOT COVER PRODUCTS, ACCESSORIES, PARTS OR ATTACHMENTS THAT ARE NOT MANUFACTURED BY SELLER. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, SELLER MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND WITH RESPECT TO THE STEEL HOME KIT SYSTEM AND ANY AND ALL IMPLIED WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN TO THE CONTRARY, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT SELLER’S MAXIMUM AGGREGATE LIABILITY TO BUYER OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY SUBSEQUENT PURCHASER, WHETHER IN AGREEMENT, UNDER ANY WARRANTY, IN TORT (INCLUDING NEGLIGENCE), IN STRICT LIABILITY OR OTHERWISE SHALL NOT EXCEED THE RETURN OF THE AMOUNT OF THE PURCHASE PRICE ACTUALLY PAID BY BUYER TO SELLER WITH RESPECT TO THE STEEL HOME KIT SYSTEM. ACCORDINGLY, BUYER AGREES TO ASSUME THE RESPONSIBILITY FOR INSURING AGAINST OR OTHERWISE BEARING THE RISK OF GREATER DAMAGES. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, LIQUIDATED, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, COST OF COVER OR BACK-CHARGE DAMAGES EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY, UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PROPERTY DAMAGE, DAMAGE TO OR LOSS OF EQUIPMENT, LOST PROFITS OR REVENUE, LABOR COSTS AND EXPENSES, COSTS OF RENTING EQUIPMENT AND OTHER ADDITIONAL EXPENSES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER WILL NOT BE LIABLE FOR ANY DAMAGES, LOSSES OR EXPENSES AS A RESULT OF BUYER’S (OR ANY OTHER PARTY’S) NEGLIGENCE, WHETHER DEEMED ACTIVE OR PASSIVE AND WHETHER OR NOT ANY SUCH NEGLIGENCE IS THE SOLE CAUSE OF ANY SUCH DAMAGE, LOSS OR EXPENSE. BUYER ACKNOWLEDGES THAT THE PRICING OF THE PRODUCTS AND/OR SERVICES TO BE PROVIDED BY SELLER PURSUANT TO THIS AGREEMENT REFLECTS THE INTENT OF THE PARTIES TO LIMIT SELLER’S LIABILITY AS PROVIDED HEREIN. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS ARTICLE ARE INTENDED TO LIMIT SELLER’S LIABILITY AND WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ANY ACTION, CLAIM OR PROCEEDING RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, MUST BE BROUGHT WITHIN TWELVE (12) MONTHS FOLLOWING THE ACTION OR EVENT GIVING RISE TO SUCH ACTION, CLAIM OR PROCEEDING. BUYER AGREES TO USE REASONABLE EFFORTS TO MITIGATE ANY DAMAGES SUSTAINED BY BUYER PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, THE DISCLAIMER OF WARRANTIES AND/OR THE DISCLAIMER AND/OR LIMITATION OF DAMAGES WILL NOT BE DEEMED TO DISCLAIM LIABILITY SPECIFICALLY IMPOSED ON SELLER BY STATUTE OR REGULATION, TO THE EXTENT SUCH LIABILITY CANNOT BE WAIVED OR DISCLAIMED. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE DISCLAIMERS OR LIMITATIONS SET FORTH HEREIN MAY NOT FULLY APPLY TO BUYER. TO THE EXTENT THAT THE DISCLAIMERS AND/OR LIMITATIONS SET FORTH HEREIN ARE NOT FULLY ENFORCEABLE UNDER APPLICABLE LAW, BUYER MAY HAVE OTHER LEGAL RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION.
14. Maintenance: Roof and wall panels should be cleaned on a consistent, as-needed basis to prevent staining or discoloration of panel finishes. Buyer should take precautions to properly maintain the steel home once erected to ensure that no damage is caused by the accumulation of snow, ice, dirt, or debris on the top, ends, or sides of the structure.
15. Forfeiture: Buyer has placed on deposit with Seller an amount at the beginning of this Agreement. This deposit is required for expenses Seller shall incur during the preparation of building drawings and fabrication. Buyer understands the preparations are commenced immediately upon receipt of Buyer’s order. Therefore, in the event of cancellation or other breach of Buyer’s obligations under this Agreement, the deposit shall be retained by Seller as liquidated damages. Buyer agrees that this represents the approximate damage to Seller due to the breach of Buyer and is not intended in any manner to be a penalty.
16. Payment Default Lien: For any reason or in any event that Seller does not receive payment in full, Buyer agrees to having a lien placed against Buyer’s real property on which home is to be constructed, in accordance with individual state laws. An interest rate of 10% per annum will be assessed on any balance owed to Seller.
17. Governing Law: This Agreement shall be governed by and construed according to the laws of the State of Texas.
18. Jurisdiction and Venue: It is agreed by and between Buyer and Seller that all disputes or other matters whatsoever arising under, in connection with or incident to the Agreement shall be litigated, if at all, in and before a court located in Montgomery County, Texas to the exclusion of the courts of any other state, territory or country. Buyer hereby waives any jurisdiction or venue objections that Buyer may have to any such action or proceeding being brought in any court located in Montgomery County, Texas.
19. Waiver of Trial by Jury: EACH PARTY HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND FULLY WAIVES ANY RIGHT TO TRIAL BY JURY TO THE EXTENT THAT ANY SUCH RIGHT NOW OR HEREAFTER EXISTS WITH RESPECT TO THIS AGREEMENT AND/OR THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION HEREWITH. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY SUCH PARTY AND IS INTENDED TO ENCOMPASS EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO TRIAL BY JURY WOULD OTHERWISE ACCRUE. EITHER PARTY IS HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER.
20. Attorney Fees: In the event Buyer in any manner defaults or breaches the terms and conditions of this Agreement, or threatens to do same, or in the event it becomes necessary for Seller to employ an attorney to enforce any provision of this Agreement, obtain injunctive relief, collect damages on account of a breach or threatened breach of this Agreement, or if Seller prevails in a tort action commenced by Buyer, Buyer shall pay to Seller, Seller’s attorney fees and costs.
21. Separability Provisions: Each provision of this Agreement shall be considered separable and if for any reason any provision or provisions hereof are determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those portions of this Agreement which are valid.
22. Force Majeure: Under no circumstances shall Seller be liable in any way to Buyer, home owner or any other party for delays, failure in performance, or loss or damage due to force majeure conditions including, without limitation: fire; flood; epidemics; quarantine; lightening; strike; embargo; explosion; power surge or failure; acts of god; war; labor or employment disputes; civil disturbances; acts of civil or military authority; inability to secure materials, fuel, products or transportation facilities; acts or omissions of suppliers; or any other causes beyond Seller’s reasonable control, whether or not similar to the foregoing.
23. Indemnification: BUYER ASSUMES ENTIRE RESPONSIBILITY AND LIABILITY FOR ANY CLAIMS OR ACTIONS BASED ON OR ARISING OUT OF INJURIES, INCLUDING DEATH, TO PERSONS OR DAMAGES TO OR DESTRUCTION OF PROPERTY, SUSTAINED OR ALLEGED TO HAVE BEEN SUSTAINED IN CONNECTION WITH OR TO HAVE ARISEN OUT OF OR INCIDENTAL TO THE PERFORMANCE OF THIS AGREEMENT BY BUYER, ITS AGENTS AND EMPLOYEES, AND ITS SUBAGREEMENTORS, THEIR AGENTS AND EMPLOYEES, INCLUDING CLAIMS OR ACTIONS FOUNDED IN WHOLE OR IN PART UPON THE ALLEGED ACTS, OMISSIONS OR NEGLIGENCE OF SELLER, SELLER’S REPRESENTATIVES, OR THE EMPLOYEES, AGENTS, INVITEES, OR LICENSEES THEREOF. BUYER FURTHER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS SELLER AND ITS REPRESENTATIVES, AND THE EMPLOYEES, AGENTS, INVITEES AND LICENSEES THEREOF IN RESPECT OF ANY SUCH MATTERS AND AGREES TO DEFEND ANY CLAIM OR SUIT OR ACTION BROUGHT AGAINST SELLER, SELLER’S REPRESENTATIVE, AND THE EMPLOYEES, AGENTS, INVITEES AND LICENSEES THEREOF.
24. Confidentiality: Buyer recognizes that Seller has and will have the following information: Prices and Technical Information and other proprietary information, which need to be protected from improper disclosure. In consideration for the disclosure of the Information, Buyer agrees that Buyer will not at any time or in any manner, either directly or indirectly, use any Information for Buyer’s own benefit, or divulge, disclose, or communicate in any manner any Information to any third party without the prior written consent of Seller. Buyer will protect the Information and treat it as strictly confidential. A violation of this paragraph shall be a material violation of this Agreement.
25. Non-competition: During the term of this Agreement, and for perpetuity following the termination of Seller’s provision of materials and/or services to Buyer, Buyer agrees to refrain from disseminating any information related to Seller’s proprietary construction methodologies, whether in printed form or accessible online, to any party other than the Seller.
26. Changes to Terms and Conditions of Sale:
Budget Home Kits reserves the right, in its sole discretion, to change the Terms under which all of its products and services are offered. The most current version of the Terms will supersede all previous versions. Budget encourages you to periodically review the Terms to stay informed of relevant updates.
27. Entire Agreement: This writing contains the total agreement of the parties and all agreements entered into prior to or contemporaneously with the exercise of the Agreement are excluded whether oral or in writing.
