Strategic Partner Agreement

►Allied Referrals to you.

a. First, an Allied customer from your “Area” who has purchased a building and needs services like yours may be referred to you. After that referral, it is up to you to reach agreement with the customer regarding your services. The legal terms regarding the “Construction Referral” are set forth in Exhibit A, along with the other legal details of this Network.

b. Second, Allied may refer former customers to you who are in your Area from time-to-time who we believe may need additional buildings and/or construction services. The legal terms regarding these “Former Customer Referrals” are also set forth in Exhibit A.

c. Finally, Allied may be in process of selling a building to a customer in your Area who wants to speak with a member of our Strategic Partner Network before committing to make the purchase of a building. Although the legal terms regarding these “Current Customer Referrals” are also set forth in Exhibit A, one of those terms deserves special attention. If you agree to accept Current Customer Referrals, you agree that you will only purchase the building for that Current Customer from Allied. Stated differently, if Allied gives you a lead for a customer who wants to buy a building as part of a turn-key project on which you will be the general contractor, you agree that you will only sell and construct an Allied building for that lead/customer.

►purchased from allied by you or facilitated by you.

In the course of your business, you will find Allied’s buildings to be of highest quality, yet competitively priced.

a. You may want to purchase a building from Allied for re-sale to a customer who has no known connection with Allied. As a part of the Strategic Partner Network, you will be able to make that purchase with a minimum of paperwork. That is because the unique terms and conditions for the purchase of buildings by members of the Strategic Partner Network are included in Exhibit B under “Direct Purchases.” If you qualify, you may even be granted credit terms for that purchase. These are different from the terms applicable to the general public — Allied will not treat members of our Strategic Network like they are strangers.

b. A customer in your Area may approach you for assistance in obtaining a building. As a member of Allied’s Strategic Partner Network, your referral of that customer to Allied for that building assures you that Allied will not only provide your customer with the highest quality customer service, but will not assist that customer in any way in obtaining construction services competitive with those that you offer. In other words, if you refer a customer to Allied, you will have an “exclusive” with respect to that customer.

►marketing and co-marketing.

We sincerely believe that the more you work with Allied, the greater pride you will take in being part of the Network. As a result, you may want to advertise your association with Allied. To protect the value we have created in our brand, we are developing a brand guideline for you to use. The legal terms of the limited license that we are giving to you for your marketing are set forth in Exhibit A under “License.” From time to time Allied may wish to co-market with you in your Area. In the event that we decide to create such a program, we will work with you directly regarding the nature of the program, duration, costs and so forth.

►your area.

We have used the term “Area” at several points in this letter. Obviously, the Strategic Partner Network extends to many areas throughout the United States. Although no Strategic Partner may claim an “exclusive” relationship with Allied in any area; we find it is helpful to define particular areas within which to make referrals to you. As we have previously discussed with you, your Area includes:

►legal terms and conditions.

To keep this letter simple and straight-forward, we have put in Exhibits A and B the terms and conditions that are part of our Strategic Partner Network Agreement. You should review both Exhibits carefully.

If you agree with the terms that this letter Agreement sets forth for your participation in the Allied Strategic Partner Network, please sign and date where indicated below.

►terms and termination.

(a) This Agreement shall commence on the Effective Date and shall continue in full force and effect for three (3) years, unless this Agreement is sooner terminated pursuant to the provisions of this Section 1(b), below (the “Term”).

(b) Notwithstanding any other provision of this Agreement, Allied may terminate this Agreement immediately because of any of the following reasons, each of which shall constitute “Cause.” As used in this Agreement, “Cause” means conviction of a Contractor principal by a court of competent jurisdiction of a felony or crime involving moral turpitude, the material breach of a fiduciary duty to Allied, or the material breach of any provision of this Agreement and the failure to cure such breach within ten (10) days after Allied provides written notice thereof. In the event of termination of this Agreement for Cause, Allied shall give written notice to Contractor specifying the Cause relied upon for termination pursuant to this Section 1(b), upon which notice (i) this Agreement shall terminate immediately; (ii) Contractor shall continue to be bound not to refer a Construction Referral customer to an Allied Competitor; (iii) all Former Customer Referrals shall cease and any action with respect thereto by Contractor shall cease; Current Customer Referrals may continue (in Allied’s sole discretion) upon a satisfactory demonstration of Contractor’s fiscal ability to complete the transaction; and (iv) the License shall terminate immediately.

(c) Except as provided in Section 1(b), you or Allied may terminate this Agreement at any time and for any reason whatsoever upon ten (10) business days prior written notice to the other. Termination pursuant to this Section 1(c) shall be without liability to Allied or Contractor except as provided in Sections 1(b)(ii), and (iii).

(d) Upon termination of this Agreement for any reason, Contractor shall immediately return to Allied any and all materials in its possession, custody or control relating to this Agreement, to Allied, or to Contractor’s performance under this Agreement.

►representatives and warranties.

Contractor hereby represents and warrants to Allied that:

(a) This Agreement, has been duly executed, and delivered by it, and constitutes its legal, valid, and binding obligation, enforceable against it in accordance with its terms subject to applicable bankruptcy, insolvency, reorganization, moratorium, or other similar laws relating to or affecting the rights of creditors generally and to general principals of equity.

(b) The execution and delivery of this Agreement, performance of the activities provided for in this Agreement, and compliance by it with the terms of this Agreement, do not, with or without the giving of notice or the lapse of time, or both, (i) result in a breach of or violate any terms or provisions of, or constitute a default under, or result in the modification or termination of any contract, commitment or other agreement or instrument to which Contractor is a party or by which Contractor is bound; or (ii) violate any existing law, rule, or regulation, applicable to Contractor, or any judgment, order or decree of any governmental agency or court, domestic or foreign.

(c) Contractor is an independent contractor and this Agreement creates no relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Contractor and its personnel shall not have the right or authority to make any promise, guarantee, warranty, or representation, or to assume, create, or incur any liability or other obligation of any kind, express or implied, against or in the name of, or on behalf of, Allied, without Allied’s prior written consent and approval. Contractor’s personnel are not Allied’s employees or agents for federal tax purposes or any other purposes whatsoever. Contractor retains sole and complete responsibility for their acts. If Contractor provides the design for a building to Allied for fabrication and supply, Contractor will retain the liability with respect to such design. Contractor, not Allied, is solely responsible for the compensation of Contractor’s personnel assigned to perform services hereunder, as well as the payment of worker’s compensation, disability and other employee benefits of every kind and description, unemployment, and other insurance and for withholding social security, income, and other taxes.

(d) Contractor agrees to comply with all federal, state, and municipal laws, rules and regulations that are now or may in the future become applicable to Contractor or Contractor’s business and personnel engaged in operations that arise from this Agreement.

(e) Contractor acknowledges and agrees that all sales leads referred by Contractor shall be subject to approval and acceptance by Allied. Allied may refuse to pursue any lead in its sole discretion for any reason, including, but not limited to, acceptability of customer credit verification, terms of delivery and/or customer’s history of rejection of conforming goods. Contractor shall not, without Allied’s prior written approval, make, alter, enlarge, or limit orders, make representations, or guarantees concerning Allied’s products or accept the return of Allied products without Allied’s prior consent.

►construction referrals.

(a) Introduction. As an accommodation to a customer, Allied agrees to introduce Contractor as a licensed general contractor capable of assisting customer with the erection of the building customer is purchasing from Allied. Contractor agrees that by accepting such introduction, it understands and agrees that Allied is not acting as “agent,” “partner” or “joint venturer” with either customer or Contractor, nor does Allied make any representation or warranty regarding Contractor. Customer will be told to conduct whatever due diligence it deems necessary or appropriate regarding Contractor and its employees.

(b) Consideration. Allied agrees to make this accommodation to timely complete the building sale. Contractor agrees to accept this introduction, and delivers the Release, provided in 3(c) below, as consideration.

(c) Release, Hold Harmless and Indemnification. Contractor, for itself and on behalf of its agents, representatives, attorneys, employees, officers, directors, shareholders, partners, trusts, trustees, executors and administrators, and each and all of their respective successors, assigns, and heirs, hereby releases, remises and forever discharges, agrees to hold harmless and hereby agrees to indemnify Allied and its subsidiaries and affiliated companies, corporations, divisions and partnerships and each of their respective successors and assigns, and each of their current and former agents, representatives, officers, directors, shareholders, partners, trusts, trustees, executors, representatives, successors, heirs, assigns, attorneys and employees, from and against any and all demands, actions, causes of action, suits, debts, guarantees, damages, penalties, expenses, pain, suffering and liabilities, and any and all other claims of every kind, nature and description whatsoever, whether legal, equitable, statutory, constitutional or administrative in nature, whether known or unknown, ascertainable or unascertainable, from the beginning of time to the later of the date of the completion of the customer’s project or the termination thereof prior to completion, arising directly or indirectly from or related to the referral of Contractor to customer.

►former customer referrals.

Allied maintains records of former customers with whom Allied has conducted prior, successful sales of buildings, whether Allied was involved in the erection or other construction effort made with respect to such project. Allied may, but shall not be obligated to, disclose certain information regarding such customers to Contractor for Contractor’s exploitation as a potential future customer. Allied makes no representation or warranty that such former customer will, in fact, be interested in any future purchase or sale. The only warranty that Allied makes is that it will faithfully report to Contractor the information in Allied’s files, but does not represent the current correctness or completeness of such information.

►current customer referrals and other direct purchases.

(a) Current Customer Referrals. By accepting a referral of a current Allied customer to Contractor, Contractor covenants not to purchase the building (or any similar, comparable, or future building) being considered or requested by such customer to any competitor of Allied. A “typical” Current Customer Referral will involve Allied’s Regional Sales Manager (“RSM”) or Territory Sales Manager (“TSM”) for Contractor’s Area discussing the requirements and desires of a customer with respect to a contemplated building purchase with Contractor and facilitating an introduction of Contractor to such customer. Thereafter, Contractor will purchase the desired building from Allied for re-sale to customer pursuant to Contractor’s contract for the provision of the completed project. In other words, a “typical” Current Customer Referral will not involve a sale by Allied to the customer, nor will Allied be a party to the contract between customer and Contractor. Any deviation from the “typical” model will be the subject to separate negotiations by and between Contractor and the relevant RSM or TSM.

(b) Direct Purchases by Contractor. Whether purchasing a building from Allied for re-sale to a referred customer or for other re-sale, certain terms and conditions for the sale of buildings apply. These Terms and Conditions are set forth in Exhibit B and are incorporated herein by this reference. Accordingly, as a member of Allied’s Strategic Partner Network Contractor will be able to purchase buildings for such re-sale with only a simple purchase order.

►license.

Allied hereby grants to Contractor the nonexclusive, nontransferable, nonassignable right during the Term to use (i.e., to copy, transmit, distribute, and display both privately and publicly) the name “Allied Steel Buildings, Inc.,” “Allied,” “Allied Buildings.com,” “the Allied Strategic Partner Network” and other related textual and graphic material that are provided by Allied to Contractor (collectively, the “Allied Materials“) from time to time solely for the specific purposes authorized in this Agreement (such use is the “License”), provided that any such use or statement (a) conforms to Allied’s brand guidelines then in effect; (b) does not state, suggest or imply by the wording or prominence of such statement, or otherwise, that Contractor has the right to make decisions, establish terms or accept orders on behalf of Allied; and (c) does not disparage Allied, its products, services or affiliates. All use of Allied Materials hereunder shall inure to the benefit of Allied and shall not create any rights, title, or interest in them for Contractor. Without in any way limiting the foregoing restrictions, Contractor may market itself as “a member of Allied’s Strategic Partner Network” with business cards, telephone book listings, advertising and so forth. As between Allied and Contractor, Allied owns and shall continue to own, exclusively, all right, title and interest (including, without limitation, all rights provided under the law of copyright and trademark) in and to the Allied Materials, and all names, trademarks, service marks, design marks, symbols and/or indicia of origin therein throughout the world and in perpetuity, subject to the permissions granted in this Agreement.

►confidentiality.

(a) Contractor acknowledges and agrees that as a result of its engagement with Allied pursuant to this Agreement, Contractor may have access to and knowledge of confidential or proprietary information developed by or licensed to Allied and of a special and unique nature and value to Allied, including, but not limited to, developed and under-development technology, methods and apparatus related to Allied’ unique approaches to steel building design and engineering, the methodology and plans for developing Allied’s business (including, but not limited to product development, testing and marketing), customers, suppliers, strategic and financial partners in the business enterprise, research reports, records, and other information, data, and documents now existing or later acquired in connection with Allied’s operations, regardless of whether any such information, data, or documents, qualify as a “trade secret” under applicable Federal or state law (collectively “Confidential Information”). Confidential Information does not include information that (i) becomes generally available to the public other than as a result of disclosures by Contractor in violation of the terms of this Agreement, or (ii) becomes available Contractor on a non-confidential basis from a source that is not bound by a confidentiality agreement with Allied or its directors, officers, employees, agents, or representatives. As a material inducement to Allied to enter into this Agreement and refer customers to Contractor as part of the Strategic Partner Network, Contractor covenants and agrees not to divulge or disclose for any purpose whatsoever at any time, directly or indirectly, any Confidential Information which is in its possession or which has been obtained by or disclosed to Contractor as a result of its work with Allied without the prior written consent of Allied, which consent may be withheld, conditioned or delayed in Allied’ sole discretion.

(b) Notwithstanding the foregoing provisions of this Section 7, Contractor may disclose Confidential Information (x) to its counsel on a need-to-know basis (provided that any such person shall be informed of the confidential nature of such information and directed not to disclose or make public such Confidential Information), (y) to the extent required by applicable law, rules and regulation, and (z) in any action, suit or proceeding between the parties, provided that in connection with disclosures permitted by clauses (y) and (z) above, Contractor shall provide Allied with at least three (3) days’ notice of such intent so that an appropriate protective order may be sought by Allied if desired.

►independent contractor status.

Nothing in this agreement shall be construed to constitute Contractor a partner, joint venture, agent, or employee of Allied, it being intended that Contractor shall remain an independent contractor responsible for its own actions. Contractor shall not have the right or authority to make any promise, guarantee, warranty, or representation, or to assume, create, or incur any liability or other obligation of any kind, express or implied, against or in the name of, or on behalf of, Allied, without Allied’s prior written consent and approval, which consent may be withheld, conditioned or delayed in Allied’ sole discretion.

►indemnification.

Contractor and Allied agree as follows:

(a) Contractor will indemnify and defend Allied from and against any and all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) resulting from or arising in connection with any claim, suit, action, or proceedings alleging: (i) that the marketing materials produce by Contractor (other than those provided by Allied), or any portion thereof, infringe upon any United States patent, copyright, trademark, trade secret, or any other intellectual property or (ii) that Contractor has failed to properly report or pay any Contractor’s Obligations.

(b) Each party hereto will indemnify the other from and against any and all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) that arise from its or his (i) breach of any of the representations or warranties contained in this Agreement, (ii) alleged violation of any law, statute, ordinance, or regulation, or (iii) grossly negligent or knowingly wrongful acts or omissions.

(c) In connection with any claim or action described in this Section 7, the party seeking indemnification shall (a) give the indemnifying party prompt written notice of the claim, (b) cooperate with the indemnifying party in connection with the defense and settlement of the claim, and (c) permit the indemnifying party to control the defense and settlement of the claim, provided that the indemnifying party may not settle the claim without the indemnified party’s prior written consent (which will not be unreasonably withheld). At its option, the indemnified party (at its cost) may participate in the defense and settlement of the claim.

►miscellaneous provisions.

(a) Assignment. Contractor shall not assign this Agreement or any of its rights or obligations hereunder to any third party except with Allied’s prior written consent, which consent may be withheld, conditioned or delayed in Allied’ sole discretion. Subject to the foregoing restriction, this Agreement shall bind and inure to the benefit of the successors and assigns of the parties.

(b) Waiver. Any failure on the part of any party to enforce at any time, or for any period of time, any of the provisions of this Agreement shall not be deemed or construed to be a waiver of such provisions or of the right of such party thereafter to enforce each and every such provision. No waiver will be binding unless executed in writing by the party making the waiver. No alteration of or modification to this Agreement shall be effective unless made in writing and executed by the authorized representatives of both parties.

(c) Severability. If one or more of the provisions, or any part of a provision, of this Agreement is for any reason held to be invalid, illegal, or unenforceable in any respect, all other terms shall remain in full force and effect, and the parties shall replace the offending provision with an enforceable provision that most nearly achieves the intent and economic effect of the unenforceable provision.

(d) Notices. All notices or other communications required or permitted under the terms of this Agreement shall be made in writing and shall be deemed given upon (i) hand delivery or (ii) three days after deposit of same in the Certified Mail, Return Receipt Requested, first class postage and certification fees prepaid and correctly addressed to the receiving party at such party’s address as indicated in the first page of this Agreement, or to such other address as such party shall have specified to the other through written notice hereunder; or (iii) on the next business day following delivery to a nationally recognized overnight delivery service (such as FedEx) with instructions to deliver the package on the next business day and to charge the sender of the package for the costs of delivery to the address indicated in the first paragraph of this Agreement, or to such other address as such party shall have specified to the other through written notice.

(e) Headings, etc. Contractor and Allied recognize and agree that the headings and captions contained in this Agreement are for convenience only and are not to be used in the interpretation of this Agreement.

(f) Governing Law; Arbitration.
i. This Agreement shall be governed by, and construed in accordance with the laws of the State of Florida, without regard to choice-of-law principles, as if made and to be performed solely in Florida. The parties agree that any suit, action, or legal proceeding arising out of or relating to this Agreement may be brought in the courts of record of the State of Florida in Broward County or the District Court of the United States, Southern District of Florida.
ii. Any disputes between Contractor and Allied with respect to the agreements contained in this Agreement, or as modified in the future, are to be settled by binding arbitration conducted pursuant to the commercial arbitration rules of the American Arbitration Association in Broward County, Florida. In any such arbitration, the scope and timing of any discovery shall be determined by the arbitrators. Such arbitration is to be the sole remedy for the settlement of such disputes, except, because all of the parties agree that money damages are inadequate to compensate for a breach of the License granted in Section 6 or the confidentiality provisions entered into by Contractor and contained in Section 7 of this Exhibit A, Contractor agrees that upon application by Allied, any court of competent jurisdiction, upon a showing sufficient to justify the entry of a temporary injunction, may enjoin any activity allegedly in breach of such agreements pending the outcome of binding arbitration or enter a similar order of like force and effect, or may enforce the final determination of such arbitrators by the issuance of such an injunction or similar order.

(g) Nature of Remedies Cumulative. Except as otherwise provided in this Agreement, all rights and remedies granted in this Agreement or available under applicable law shall be deemed concurrent and cumulative and not alternative or exclusive remedies, to the full extent permitted by law and this Agreement, and any party may proceed with any number of remedies at the same time or in any order. The exercise of any one right or remedy shall not be deemed a waiver or release of any other right or remedy, and any party, upon the occurrence of an event of default by another party under this Agreement, may proceed at any time, under any agreement, in any order and with any available remedy.

(h) Survival. The obligations under Exhibit A, Sections 1(b), 2, 3(c), 4, 7 and this Section 8 and under Exhibit B shall survive the expiration or earlier termination of this Agreement.

►effectiveness

The Purchase Order of which these Terms and Conditions are a part shall become a binding Contract upon its acceptance in writing by an authorized representative of Allied. After such acceptance, it may not be rescinded by either party without cause.

►payment

Time and terms of payment are of the essence. Charges for the goods and services contracted for purchase in the Purchase Order, as it may be changed (collectively, the “Purchased Goods”), are clearly indicated on the front of the Purchase Order or in a subsequent, written change order. Goods manufactured to order or with custom specifications may require prepayment of all or part of the purchase price prior to shipment.

a. Allied, in its sole discretion, shall invoice Contractor for this sale and all material associated with this sale at the time of order, fabrication or shipment, unless otherwise agreed in writing. Except as otherwise agreed in writing, all sums owed by Contractor to Allied with respect to this sale are due and payable upon the date of invoice. If Contractor fails to fulfill the terms of payment applicable hereto, Allied may defer further shipments, or in its sole discretion, cancel the unshipped balance of any unfilled orders.
(1) Contractor specifically agrees with Allied that any invoiced sum that has not been paid by Contractor within thirty (30) days from the date of invoice shall bear interest at a rate equal to the maximum non-usurious rate for which Allied and Contractor could lawfully contract with respect to such payment under the applicable laws of the State of Florida. However, Allied reserves the right to charge a lower rate of interest from time to time, in its sole discretion. In the event Contractor desires different terms with respect to any particular order, such terms are subject to prior written approval of Allied’s Credit Department.
(2) Additionally, if an invoice becomes past due, is placed in the hands of an attorney for collection, if collected by any legal proceeding(s), or if this Agreement is relevant to any other dispute(s) between the parties, in addition to any other amount(s) and damage(s) recovered by Allied, Contractor agrees to pay Allied any and all attorneys’ fees and costs incurred in any such dispute(s) and/or proceeding(s), together with interest, expenses, costs and any other charges, which attorneys’ fees shall not be less than thirty percent (30%) of the total amount payable. “Costs incurred in the collection of sums” as used herein is not to be limited to costs incurred in litigation, but includes, without limitation, copying and mailing expenses, lien fees, lost management time, inspection expenses and expert witnesses’ expenses in addition to taxable costs incurred in litigation.

b. All credit terms shall be subject to the prior written approval of Allied’s Credit Department. CONTRACTOR AUTHORIZES ALLIED TO MAKE INQUIRIES AND TO RECEIVE INFORMATION ABOUT CONTRACTOR’S CREDIT EXPERIENCE FROM OTHERS, TO ENTER THIS INFORMATION IN CONTRACTOR’S FILE, AND TO DISCLOSE THIS INFORMATION TO APPROPRIATE THIRD PARTIES FOR REASONABLE BUSINESS PURPOSES. Allied will not discriminate in the application of credit inquiries and payment policies on the basis of race, color, sex, creed, religion, nationality, sexual orientation, or marital status. Any risk assessments conducted by either Allied or by third party credit bureaus will be done in conformance with all applicable laws. Allied reserves the right to make credit inquiries even after having received and approved Contractor’s initial credit application and guaranty. Notwithstanding any other provisions herein to the contrary, if at any time Allied in good faith determines that Contractors’ credit shall become impaired, Allied may decline to deliver the Purchased Goods except for cash, in advance.

►terms regarding purchased goods

a. In some instances, and at Contractor’s request, Allied may submit to Contractor drawings of the Purchased Goods to be approved by Contractor. The approval drawings may consist of plans, elevations, cross sections, details, and notes to describe the scope of materials and building components outlined in the Purchase Order. Contractor may request additional sets of drawings which will be provided upon the payment of postage, reproduction, and handling fees. Within thirty (30) days (unless other project timelines are agreed at the time of purchase), Contractor must return a signed copy of the drawings indicating approval with or without modifications, otherwise the drawings will be automatically considered as approved. Contractor may request additional time to approve by contacting Allied. Upon receipt by Allied of the approved drawings, Allied shall proceed with the preparation of detailed shop drawings and the manufacture of the Purchased Goods

b. Contractor may request changes or add extras. Allied shall only be bound to comply with changes or extras in a written Change Order signed by Contractor or Contractor’s agent that has been approved by Allied. The Change Order shall describe the change and the modification to the Contract price.

c. If Contractor delays the detailing, design, fabrication and/or delivery or otherwise delays this Purchase Order in any fashion, the purchase price may be adjusted by Allied, in its sole discretion, to reflect any price increase(s) that Allied may put into effect.

d. Except when specifically indicated, all dimensions are exterior dimensions. Contractor’s dimensions have been provided with this Contract. Any changes to those dimensions by Contractor or not caused by Allied, may result in cost increase and delay.

e. Contractor is solely responsible to assure that site conditions are adequate and appropriate for the building. For example, but not as a limitation, contractor is solely responsible to assure that soil and subsoil conditions at the site are of sufficient density to support and sustain the foundation, the building, and any materials to be stored therein.

f. Allied shall have no responsibility whatsoever for the erection of the structure or structures that are to be built with the Purchased Goods and Allied shall not be liable to Contractor for any loss or damage resulting from or in connection with the erection of the said structure or structures. Contractor hereby releases Allied from all claims, damages, expenses and liabilities of every kind and nature arising out of the erection of the subject structure or structures.

g. Contractor or a subcontractor that is the erector of the building must follow and comply with the specifications and instructions contained in the drawings supplied to Contractor, including, but not limited to the Standard Product Drawings. Contractor agrees to indemnify and hold Allied harmless for any loss of damages, including attorney’s fees, resulting from the failure to comply with the specifications and instructions contained in the drawings supplied to Contractor.

h. Intellectual Property. If Contractor furnishes the design for the Products or requires Allied to prepare a unique design for the Purchased Goods, then Contractor will own all intellectual property rights relating to such design. The Contractor hereby grants a free, irrevocable, and unconditional license for the benefit of the Allied (including any party affiliated to the Allied) to freely use the images of the Purchased Goods, by any means; such license will survive the delivery of the Purchased Goods.

►delivery

Unless otherwise specified in the Purchase Order or a delay in delivery is caused by Contractor’s action or inaction, Purchased Goods are shipped DAP, Contractor’s designated place of delivery as accepted by Allied, per Incoterms 2017 or any subsequent equivalent provision of Incoterms. Accordingly, title and risk of loss shall pass to Contractor upon Allied’s tender of delivery to Contractor. Unless provided otherwise in the Purchase Order or a change order, Allied will arrange for shipment of the building to Contractor and the cost of such shipment will be included in the price of the building.

a. Delivery dates indicated in the Contract are approximate and are based on prompt receipt of all necessary information regarding the Purchased Goods. Allied will use reasonable efforts to meet the indicated delivery date. UNDER NO CIRCUMSTANCES WILL ALLIED BE LIABLE TO CONTRACTOR FOR CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, OR EXEMPLARY DAMAGES ARISING FROM DELAYS IN DELIVERY OR IN PERFORMANCE (OR FAILURE TO MANUFACTURE OR DELIVER) ON THE INDICATED DELIVERY DATE, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, ANTICIPATED PROFITS, OR LOST BUSINESS. Allied shall also not be liable for any delay or failure to deliver due to causes beyond its control including, without limitation, acts of God; acts of Contractor; acts of civil or military authority; fires; strikes, or other labor disturbances; floods, epidemics; wars or acts of terrorism; demonstrations or riots; or delays or failure to deliver caused by Allied’s inability to obtain the necessary labor, materials, components, or manufacturing facilities.

b. Contractor shall receive and accept delivery within fourteen (14) days of notice that the Purchased Goods are ready for shipment. If Contractor fails to accept timely delivery, Allied may, but shall not be required to, treat this Contract as being materially breached, in which event Allied shall have all available remedies. In the event of any delay caused by Contractor, Allied will store the Purchased Goods without any liability. Contractor will bear the risk of loss of such stored goods and Contractor will pay the unpaid portion of the Contract price, plus storage, insurance and handling charges and freight charges on or after the date on which the goods are tendered for delivery. Delays caused by Contractor include, but are not limited to: (i) Contractor, its agents, or employees, notify Allied to place order on “hold” until further notice; (ii) Contractor delays approval of drawings for more than thirty (30) days after receipt of approval drawings; and (iii) Contractor delays delivery of the building or parts thereof after fabrication is complete and ready to ship. If either (i) or (ii) occurs, Allied may then charge Contractor whatever costs or damages Allied incurred because of the delay, including incidental and consequential damages. In the event (iii) occurs, the full price of the Purchased Goods will be immediately due. IF THE FACTORY INCREASES THE PRICE OF THE BUILDING AFTER CONTRACTOR HAS CAUSED A DELAY, THIS CONTRACT WILL AUTOMATICALLY BE DEEMED TO HAVE BEEN AMENDED TO INCLUDE SUCH A PRICE INCREASE AND CONTRACTOR’S OBLIGATION HEREUNDER WILL BE INCREASED TO REFLECT SUCH A PRICE INCREASE.

c. Contractor shall bear risk of loss as soon as the truck bearing the Purchased Goods arrives at his premises. Thus, all risk of loss during the period of unloading, including personal injury, or any other liability, is upon Contractor. Allied shall not be responsible for spotting, switching, drayage, demurrage or other transportation charges unless agreed to in writing prior to delivery. Contractor shall hold Allied harmless from any loss, costs, claims, suits, damages, and attorney’s fees arising from any alleged or real injury (including to personal injury) to any person or property which arises after delivery of the Purchased Goods.

►confidentiality

At all times prior to, during, and after the Contract, Contractor will (i) maintain the confidentiality of any information disclosed by the Allied or any of its parents, subsidiaries, affiliates, customers, and contractors, whether or not identified as “confidential” upon disclosure (“Confidential Information”); (ii) not disclose or permit the disclosure of any Confidential Information to any person other than its employees for whom such knowledge is essential for performance of the Contract; and (iii) not use Confidential Information except for performance of the Contract. Contractor will immediately notify the Allied of any disclosure of any Confidential Information that is not permitted by this Contract or other misuse of any Confidential Information or breach of this Contract. Without limiting the direct liability of Contractor’s employees and others who may have received Confidential Information directly or indirectly from the Allied, Contractor will be responsible for the disclosure or other misuse of Confidential Information by Contractor’s employees and others, and Contractor will immediately take such steps as may be necessary to terminate any continuing disclosure or misuse by any of Contractor’s employees and others of which Contractor becomes aware. Contractor makes no representation or warranty of any kind, express or implied, with respect to any Confidential Information. The Allied may elect at any time, by written notice to Contractor, to terminate Contractor’s further use of Confidential Information for any purpose. Upon receipt of such notice, Contractor will, and will cause Contractor’s employees to, promptly cease all further use of Confidential Information, return to the Allied all physical materials containing Confidential Information, whether the materials were originally provided by the Allied or copied or otherwise prepared by Contractor or any Contractor employee, and erase or otherwise destroy any Confidential Information kept by Contractor or any Contractor employee in electronic or other non-physical form. Such termination by Contractor will not affect Contractor’s continuing obligations under this Section. The Allied agrees that no information disclosed by it to Contractor will be confidential unless due notice thereof is given in advance to and accepted by Contractor in writing.

►certain disputes

Any dispute about the quality, condition, or workmanship of the goods or otherwise regarding the terms of this Contract, shall not entitle Contractor to reject or revoke acceptance of the goods. In the case of any dispute, Contractor shall take delivery of the Purchased Goods, pay for the same, and make a claim under Allied’s warranty. This remedy shall be in lieu of all other remedies available to Contractor.

►shortages and defects

Purchased Goods shall be deemed fully accepted by Contractor and all claims for damages or defects caused by shipment of the goods shall be deemed waived unless the carrier receives written notice of any such defects at the time of delivery, in writing, on the bill of lading. Material inventories should be conducted within fourteen days of delivery and any and all claims for shortages must be reported in writing within 30 days of the date of delivery. Contractor must give written notice of all warranty claims within 30 days after Contractor discovers the defect or alleged defect. Such written notice shall state with particularity each alleged defect and/or shortage claimed by Contractor. Contractor’s exclusive remedy for any defects or shortages in goods shall be limited to Allied replacing or repairing (but not dismantling or installing) defective parts in Allied’s sole option. Allied shall only be liable for repairs which are authorized in writing prior to repair. Replacement of shortages and replacement parts shall be DAP Incoterms 2017 (or any subsequent equivalent provision of Incoterms), address of the Contractor. Allied’s liability for shortages and defects shall not in any event include indirect, incidental, consequential, special, or exemplary damages.

►initial payment

In addition to (and not in lieu of) other remedies available to Allied, upon breach or repudiation of this Contract by Contractor, Allied may retain for its own account any initial payment made by Contractor, and such retention shall not impair any other remedies available to Allied under this Contract at law or in equity.

►security interest

Contractor hereby grants to Allied a security interest in the structure or structures that are contemplated with respect to the Purchased Goods (the “Collateral”) to secure payment and performance of the obligations as set forth in this Contract. Default in payment or performance of any of the obligations is a default under this Contract. Upon such default, Allied may declare all obligations immediately due and payable and shall have the remedies of a secured party as provided by law.

a. The security interest granted herein by Contractor and retained by Allied is to secure payment of the full purchase price and all other charges due and owing Allied by Contractor under the terms hereof or under the terms of any other agreement of Contractor and/or Contractor’s affiliates with Allied and/or Allied’s affiliates. Such security interest constitutes a “purchase money security interest” pursuant to the applicable provisions of the Uniform Commercial Code, as amended. Contractor represents and warrants that such security interest will, upon the filing of a financing statement with the applicable filing authority, constitute a valid, perfected, first priority security interest in the Collateral.

b. This Agreement constitutes a security agreement and financing statement between the parties hereto and Contractor hereby authorizes Allied to file this Agreement or any other financing statement or similar document that Allied deems appropriate with any applicable federal, state and/or local filing authority for the purpose of perfecting the security interest created hereby.

c. Upon Allied’s request, Contractor agrees to furnish Allied with a true, accurate and complete legal description of any property on which the Collateral is to be erected, as well as Contractor’s entity type(s), state of organization/principal residence, organizational identification number and federal taxpayer identification number(s) and/or social security number(s). Allied may assign its right to receive from Contractor any payments called for hereunder at any time on reasonable notification to Contractor as to the assignee for receipt of such payments.

d. Allied’s right to a security interest shall be in addition to and not in lieu of any statutory lien, bond claim or stop notice Allied may have under applicable statutes. Contractor agrees that all payments with lien release language on the back of any check shall be sent only to the principal office of Allied, in Fort Lauderdale, Broward County, Florida.

►indemnification

Contractor shall indemnify, defend, and hold harmless Allied from and against all losses, claims, liabilities, damages, costs, and expenses (including, without limitation, reasonable attorneys’ fees) incurred by Allied because of any actual or threatened claim, action, investigation, proceeding or suit arising out of the acts or omissions of Contractor or third parties (including without limitation carriers), whether for negligence, failure to maintain the building or otherwise.

►warranty

For a period of one (1) year from the date of original shipment, Allied warrants that its products (i.e., the main primary steel system) are free from defects in materials and workmanship. Finish warranties, such as those on metal panels, are provided by the manufacturer and will be for a period of twenty (20) years. Overhead doors are warranted solely by the manufacturer and Allied offers no additional warranty. Other warranties given in connection with a building, if any, must be set forth in writing in the purchase agreement to be enforceable against Allied. Allied’s warranty does not cover defects or damage caused by acts of God (including excessive wind loads or excessive snow loads), falling objects, accidents, salt water atmosphere, corrosive chemicals, fumes, ash, animal waste, or acts of Contractor, including, but not limited to failure to maintain the building. This warranty is given in place of any and all other warranties expressed or implied. ALLIED GIVES NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; WHICH WARRANTIES ARE EXPRESSLY DISCLAIMED. Roof and wall panels should remain free of any foreign substances and should be cleaned on a regular basis to prevent staining or discoloration of panel finishes. Contractor is obligated to properly maintain the building once erected to ensure that no damage is caused by the accumulation of snow or ice.

►complicance with laws

Contractor is responsible to determine and comply with applicable laws, rules, and regulations (including, but not limited to zoning, building codes and permit requirements) where the building is to be erected. Allied shall not be liable for any damages or losses, whether direct or indirect, caused by Contractor’s failure to satisfy the requirements of this Section.

►taxes and duties

Contractor shall be liable for all applicable sales taxes and duties owed with respect to the Purchased Goods. If Allied must pay any amount to governmental authorities prior to delivery of the Purchased Goods, Contractor shall promptly pay the amount of such taxes to Allied upon demand regardless of whether this Contract is considered to be in interstate, intrastate, or international commerce.

►promotions

Contractor agrees that Allied may place signs identifying the building as an Allied product during construction and, following completion of construction, Allied may use the project name, size, intended use and location in its general marketing and advertising materials. Contractor hereby grants a free, irrevocable, and unconditional license to and for the benefit of Allied (including any party affiliated with Allied) to use (i.e., to copy, transmit, distribute, and display) images of the Purchased Goods, by any means; provided, however, that the owner’s name shall not be used without the consent of the owner who bought the building from Contractor. This license will survive the delivery of the Purchased Goods.

►entire agreement: amendment

No understanding, promise or representation, and no waiver, alteration, or modification of any of the provisions hereof shall be binding upon Allied unless consented to expressly in writing by an authorized representative of Allied. Contractor has not relied on any statements or representations of any party (including without limitation any of Allied’s sales representatives) that alters, adds to, or differs from these terms or conditions and no such statement or representation shall be recognized or be binding upon Allied. All provisions of Contractor’s purchase order or other documents that add to or differ from these terms and conditions are EXPRESSLY REJECTED. The failure of Allied to exercise any rights under this Contract, upon the default by Contractor or otherwise, shall not be a waiver of Allied’s subsequent ability to exercise that right. If any provision contained in this Contract (or application thereof to any person or circumstance) shall to any extent be held void or invalid by a court of competent jurisdiction, the remainder of this Contract (or the application of such provision to persons or circumstances other than those as to which it is held or invalid) shall not be affected thereby, and each provision of this Contract shall be valid and enforced to the fullest extent permitted by law.

►assignment

Neither this Contract, nor Contractor’s rights and obligations hereunder, are assignable by Contractor without the prior written consent of the Allied. No such consent or assignment will release Contractor or change Contractor’s liability to perform all its obligations under this Contract. Any attempted assignment without the prior written consent of Allied will be null and void.

►applicable law: venue

This Contract (and the performance thereof) shall be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Florida. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed and does not apply. The parties hereto expressly agree that if a court of competent jurisdiction deems any of the language contained herein to be vague or ambiguous, such language shall not be presumptively construed against either party but shall be construed so to give effect to the true intentions of the parties. This Contract has been executed in Broward County, Florida. Contractor irrevocably consents to the exclusive jurisdiction of the courts of Broward County, Florida for the purpose of enforcing this Contract.

► garantee for extending credit

As an inducement to Allied to extend credit to Contractor on an open account basis for products and services sold and delivered by Allied from time to time to Contractor, the undersigned Guarantors(s) do(es) hereby jointly and severally Guaranty the payment on demand after maturity of all amounts due and payable from Contractor to Allied for such products and services, together with interest at the rate of one and one-half (1 1/2%) per month on the unpaid balance, whether such indebtedness or other liability arises under the Strategic Partner Agreement or in any other manner whatsoever (all of such indebtedness guaranteed hereunder is herein sometimes referred to as the “Guaranteed Obligations“). If state law of Guarantor prohibits this rate, the interest charged as an annual percentage rate shall be the maximum allowed by state law. It is further agreed that Guarantor will pay all costs of collecting or securing, or attempting to collect or secure all or any part of the Guaranteed Obligations, including a reasonable attorney’s fee, whether the same be collected or secured by suit or otherwise.

In further consideration of the promises recited above, Guarantor hereby; (a) waives and relinquishes any and all right of subrogation or other rights of reimbursement from the Builder or the Builder’s estate, and any and all other rights whatsoever to payment from the Builder or the Builder’s estate, arising out of or on account of any sums paid or agreed to be paid by Guarantor under this guaranty, regardless of whether any such right of subrogation, reimbursement or payment, as the case may be, is reduced to judgement, liquidated or unliquidated, fixed or contingent, matured or unmatured, disputed or undisputed, secured or unsecured; and (b) agrees that, if at any time all or any part of any payment previously applied by Allied upon any of the Guaranteed Obligations must be returned by Allied for any reason, whether upon the claim of a preference, fraudulent transfer, or other claim of a debtor-in-possession, trustee-in bankruptcy, or other representative of creditors of Builder, and whether by court order, administrative order, or nonjudicial settlement, Guarantor shall remain liable for the full amount returned just as if such amount had never been received by Allied, and notwithstanding any cancellation, termination or expiration of this guaranty or of any other instrument or agreement (including, without limitation, the Strategic Partner Agreement) evidencing any of the Guaranteed Obligations, all in accordance with the intent and understanding of Guarantor and Allied that the obligations of Guarantor hereunder shall be deemed never to have been discharged or cancelled upon the occurrence of any event described in this clause.

Allied may, without notice to Guarantor, extend terms of payment to Contractor. It will not be necessary for Allied to notify Guarantor of Allied’s acceptance of this guaranty or the sale or delivery of any products or services to Contractor. Guarantor further conveys and agrees that Allied may enforce the Guaranteed Obligations of Guarantor by direct action against Guarantor and that Allied shall not be required to institute any proceedings against Contractor before instituting and prosecuting such an action against Guarantor.

Guarantor may revoke this guaranty at any time by giving Allied thirty (30) days’ written notice by certified mail of Guarantor’s intention to terminate it, but such termination will not affect Guarantor’s liability for payment of Contractor obligations of payment existing prior to the date of the termination.

As further inducement to Allied for extending credit to Contractor, Guarantor hereby subordinates any claim or claims for monies, advanced or otherwise, which Guarantor may now or hereafter have against Contractor to any claim or claims for goods or services bought by Contractor from Allied. This subordination is not to be withdrawn without giving thirty (30) days’ notice, in writing, by certified mail, to Allied and upon such withdrawal the indebtedness of the Contractor to Allied as of such time will continue to be superior to the claim or claims Guarantor may then or thereafter have against the Contractor until such indebtedness to Allied is paid.

In the event of the death of Guarantor, the Guaranteed Obligations of Guarantor, as herein set forth which arise or are created prior to the date when Allied shall have received notice in writing of such death shall continue in full force and effect against Guarantor’s estate.

The undersigned agrees that this guaranty shall be interpreted, construed and governed by the Uniform Commercial Code as in effect in the State of Florida.