B.PUBLIC Prefab
Terms & Conditions v26.02
1. COMPLETE TERMS. Sales by B.PUBLIC Prefab are governed by these terms and conditions, unless the parties have entered into a mutually executed written agreement stating different applicable terms and conditions. This is an offer conditioned on Buyer’s acceptance of all these terms. These terms and conditions can be modified, waived, or amended only by writing signed by both Buyer and B.PUBLIC Prefab.
2. SCHEDULE & TERMS OF PAYMENT. Payment schedule and terms are according to the terms set forth on the Initial Sales Order, unless the parties agree in writing to other terms. If Buyer fails to pay any sum owed hereunder when due, interest shall accrue to B.PUBLIC Prefab’s credit on such sum at the rate set forth on the Initial Sales Order.
4. NO DEDUCTION. Buyer shall not be entitled to deduct from the price invoiced to it by B.PUBLIC Prefab the amount of any claim asserted by Buyer against B.PUBLIC Prefab, unless such claim shall have been allowed, in writing, by B.PUBLIC Prefab.
5. WARRANTY. B.PUBLIC Prefab warrants that: Prefabricated Assemblies shall meet or exceed standard assembly specifications as provided to Buyer or project specific specifications if different than standard assembly specifications; that all structural components shall comply with engineer-of-record approved Shop Drawings: and installation of membranes and insulation materials shall comply with manufacturers’ recommendations’.
B.PUBLIC Prefab agrees to repair, replace, or refund the cost of, at its sole discretion, any Prefabricated Assembly that is not in conformance with this warranty statement for a period of 12 months after the date the Prefabricated Assemblies are delivered to the Buyer. Materials used in the assemblies may carry additional manufacturer’s warranties. If a manufacturer’s warranty exists, the manufacturer’s warranty shall take precedence.
Written notice of any claim under this warranty must be given to B.PUBLIC Prefab within seven (7) calendar days of discovery of the alleged defect, and Buyer must afford B.PUBLIC Prefab a reasonable opportunity under the circumstances, including site access, weather and distance from BPP's location to inspect the assembly and evaluate the claims.
If repair is deemed the most appropriate remedy, B.PUBLIC Prefab shall initiate the repair process within seven (7) calendar days from the date a claim is validated or on a mutually agreeable timeframe. If replacement is deemed the most appropriate remedy, production of replacement components shall be initiated within five (5) working days from the date a claim is validated and delivered upon completion or upon a mutually agreeable timeframe. If a refund is deemed the most appropriate remedy, B.PUBLIC Prefab shall issue a refund for cost of defective components based on square footage within thirty (30) calendar days from the date that a claim is validated.
Damage due to improper handling, normal wear and tear, or deficiencies caused by improper operation, maintenance or repair, or failure to comply with applicable manufacturer’s recommendations shall not be considered a warranty item. This warranty applies only to the construction of prefabricated components provided by B.PUBLIC Prefab.
There are no warranties which extend beyond the description on the face hereof, and all implied warranties, including warranties of merchantability, are expressly disclaimed.
6. REMEDIES. Buyer’s remedies shall be limited to the repair, replacement, or refund of cost of defective prefabricated assemblies at B.PUBLIC Prefab’s sole discretion. The remedy selected by B.PUBLIC Prefab is Buyer’s sole and exclusive remedy. UNDER NO CIRCUMSTANCES SHALL B.PUBLIC PREFAB BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES WHICH ARE SUFFERED BY BUYER OR ANY OTHER PERSON WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE. ANY LEGAL ACTION AGAINST B.PUBLIC PREFAB FOR BREACH OF THESE TERMS OF SALE, INCLUDING ANY WARRANTIES, MUST BE INSTITUTED WITHIN ONE YEAR AFTER DELIVERY OF GOODS.
7. TITLE AND RISK. B.PUBLIC Prefab will convey good and marketable title to the Prefabricated Assemblies. Irrespective of any provisions concerning freight or price, title and risk of loss or damage shall pass to Buyer upon loading of such goods F.O.B. the carrier, or upon pickup by the buyer from B.PUBLIC Prefab production facility.
8. DELIVERY. If B.PUBLIC Prefab coordinates shipping, B.PUBLIC Prefab reserves the right to route all shipments and may assist Buyer in processing claims against carriers, without incurring liability therefor. Shipping prices include costs of transportation and insurance to the “consigned to/ship to” location specified in B.PUBLIC Prefab’s Bill of Lading. Any increase in delivery costs resulting from Buyer’s instructions to the carrier and any extra costs of utilizing substitute methods of delivery, when the intended type of carrier or loading or unloading facilities become unavailable, shall be the Buyer’s responsibility.
9. FORCE MAJEURE. In the event B.PUBLIC Prefab is unable to ship the Prefabricated Assemblies because of fire, earthquake, other act of God, acts of public enemies, labor or civil disturbance, shortage of raw materials, failure of timely delivery by B.PUBLIC Prefab’s suppliers, energy or transportation shortages, governmental control or diversion, government order issued in connection with a public health emergency, pandemic, or any other cause whether or not similar to the causes listed above, beyond B.PUBLIC Prefab’s reasonable control, B.PUBLIC Prefab reserves the right to delay the affected order without any liability to Buyer whatsoever.
10. DEFAULT. Buyer will be in default if (a) Buyer fails to pay to B.PUBLIC Prefab any amount when due under this agreement, (b) Buyer fails for a period of five days after receiving written notice from B.PUBLIC Prefab to fulfill or perform any provisions of this agreement (other than the prior provision relating to due date of payments), (c) Buyer becomes insolvent or bankrupt, or a petition therefor is filed voluntarily or involuntarily and not dismissed within 30 days from filing, or (d) Buyer makes a general assignment for the benefit of its creditors, or a receiver is appointed, or a substantial part of Buyer’s assets are attached or seized under legal process and not released within 30 days thereafter.
11. MATERIAL SPECIFICATIONS . Buyer will familiarize itself with all information provided by B.PUBLIC Prefab, Project Engineer, and Project Architect pertaining to the project including, but not limited to, material and assembly specifications, handling and installation recommendations, relationship and attachment of site built elements, or any information supplied to Buyer by B.PUBLIC Prefab or otherwise available to Buyer from B.PUBLIC Prefab at any time. Assembly dimensions are subject to permissible industry variations and intended to identify general material thickness designations by lumber and other suppliers and producers.
12. TAXES. All gross receipts, sales, excise, or other forms of taxes, including tariffs, levied against this transaction (collectively, “Taxes”), shall be paid by Buyer. whether calculated at the time of Buyer’s purchase or upon delivery to Buyer. Buyer acknowledges and agrees to pay all such Taxes paid by B.PUBLIC Prefab and passed through to Buyer.
13. HANDLING & STORAGE. Products provided by B.PUBLIC Prefab must be protected according to B.PUBLIC Prefab handling guidelines and individual material specifications during transit, storage, and use, including without limitation, transit within, storage at, and use on a jobsite.
14. MUTUALITY. Except as provided in Section 4, all debts and obligations of Buyer and B.PUBLIC Prefab to each other are mutual and subject to setoff.
15. BUYER INDEMNIFICATION. Buyer agrees to indemnify and hold B.PUBLIC Prefab harmless from all claims, judgments, liabilities, expenses, or costs arising from Buyer’s breach of these terms and conditions of sale and/or Buyer’s own acts or omissions.
16. GOVERNING LAW. Any transaction subject to these terms and conditions shall be governed by the laws of the state of New Mexico.
17. JURY WAIVER. To the fullest extent permitted by law, the parties hereby unconditionally and irrevocably waive any right to a trial by jury in any action or proceeding arising under, based upon or related to these terms and conditions, any amendments, modifications, or supplements thereof, the work, and/or the relationship between the parties, including but not limited to any actions arising from tort or contract claims.
18. MISCELLANEOUS. The failure of either Party to enforce at any time or for any period of time any of the provisions of this Agreement will not be construed to be a waiver of such provisions or of its right thereafter to enforce such provision and each and every provision thereafter. If any provision of these terms and conditions shall be held invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect any other provision or invalidate or render unenforceable such provision in any other jurisdiction. Sections 5, 14, 15, and 16, shall survive the expiration or termination for any reason of this agreement.
19. PROJECT CANCELLATION. Upon approval of Sales Orders by the Buyer, B.PUBLIC incurs expenses and makes commitments to the manufacturing process which include; projected overhead, labor and anticipated profit obligations based on the scale of the project. No refunds shall be made after approval of Sales Orders due to project cancellation unless expressly decided by B.PUBLIC Prefab and at B.PUBLIC Prefab’s sole discretion.
20. CHANGES TO PROJECT. Changes to the quantities and specifications of the Prefabricated Assemblies after acceptance of the Initial Sales Order and up to the Architectural Design Freeze Date may be made without penalty to the Buyer. Such changes shall be reflected in the Final Sales order and may exceed the Initial Sales Order amount. Changes made to the project quantities and specifications after the Architectural Design Freeze Date may incur additional expenses for re-work of shop drawings, previously obtained approvals, material purchasing, fabrication, and/or coordination.
21. PROJECT PLACED ON HOLD. If a project is placed on hold at the request of the Buyer, B.PUBLIC Prefab shall be entitled to compensation for all services provided and materials secured up to the date of the hold notification along with any anticipated overhead, labor, and profit compensation if lost due to the Buyer requested hold. Remainder of funds, if applicable shall be held by B.PUBLIC Prefab and applied to the project at restart. A 5% monthly service fee shall be charged against the held funds until the project is restarted.
22. SUITABILITY. Many jurisdictions have codes and regulations governing sales, construction, installation, and/or use of Prefabricated Assemblies, which may vary from jurisdiction to jurisdiction. While B.PUBLIC Prefab attempts to assure that its Prefabricated Assemblies comply with such codes, it cannot guarantee compliance, and cannot be responsible for how the product is installed or used. Before purchase and use of a Product, please review the Product applications, and national and local codes and regulations, and be sure that the Prefabricated Assemblies, installation, and use will comply with them. Except on projects where B.PUBLIC Prefab is the design professional of record, the Buyer assumes responsibility for compliance with regulations in the localities in which the Prefabricated Assemblies will be shipped, sold and used.
23. NO GUARANTEE OF BUILDING ENERGY-USE. The thermal performance or energy-use of a structure is subject to a number of variable factors including, but not limited to, site built building systems, windows and doors, climatic weather patterns, and end-user behavior. B.PUBLIC Prefab does not guarantee the performance of any building and accepts no responsibility if the performance is different than anticipated. This does not affect or diminish B.PUBLIC Prefab’s or manufacturers’ warranties in relation to the Prefabricated Assemblies.
24. STORAGE. Shipping or Buyer pick-up of prefabricated assemblies shall be scheduled in relation to the Delivery Date established within the approved Final Sales Order. The Buyer may postpone the Delivery Date up to thirty (30) calendar days without penalty. Storage of prefabricated assemblies beyond the thirty days shall incur monthly fees as follows; $500 per 1,000 square feet of prefabricated assembly prorated for the first three (3) months; $1,000 per 1,000 square feet of prefabricated assembly prorated for the subsequent eight (8) months. Projects with re-fabricated assemblies stored for greater than twelve months from the Delivery Date specified in the Final Sales order shall be considered canceled by the Buyer and undelivered materials forfeit.