Revised: 1/30/2025

1. ACCEPTANCE OF TERMS

Whirlwind Steel Buildings, Inc. (“Whirlwind”, “we” or “us”) provides a technology-enabled project cost estimator branded as the “Whirlwind Estimator” located at https://apps.mywhirlwindsteel.com/quoting/. This Reseller Terms of Service (this “RTOS”) is a part of the Whirlwind Terms of Service, available at https://www.whirlwindsteel.com/terms-of-service/, and is hereby incorporated into the Whirlwind Terms of Service by reference. All capitalized terms used but not defined in herein shall have the meanings set forth in the Whirlwind Terms of Service. This RTOS sets forth the additional terms and conditions under which you may generate estimates for your Customers using the Whirlwind Estimator. Whirlwind may, at its discretion, update this RTOS at any time. You can access and review the most current version of this RTOS at the URL for this page or by clicking on the “Reseller Terms of Service” link within the Estimator, or as otherwise made available by Whirlwind.
PLEASE REVIEW THIS RTOS CAREFULLY. BY ACCESSING OR USING THE WHIRLWIND ESTIMATOR, YOU AGREE TO BE BOUND BY THIS RTOS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS RTOS, YOU MAY NOT ACCESS OR USE THE WHIRLWIND ESTIMATOR.
THIS RTOS REQUIRES FINAL AND BINDING ARBITRATION UNDER THE WHIRLWIND TERMS OF SERVICE TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS RTOS, OR YOUR ACCESS TO OR USE OF THE WHIRLWIND ESTIMATOR, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS RTOS, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 14 OF THE WHIRLWIND TERMS OF SERVICE CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
If you are entering into the RTOS as an individual, you represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this RTOS; and (c) are not a person barred from using the Whirlwind Estimator under the laws of any applicable jurisdiction. THE WHIRLWIND ESTIMATOR IS NOT INTENDED FOR USERS UNDER THE AGE OF 18, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL DATA OR USING ANY ASPECT OF THE WHIRLWIND ESTIMATOR, AND BY TAKING SUCH ACTIONS YOU AGREE, REPRESENT, AND WARRANT THAT YOU ARE 18 YEARS OF AGE OR OLDER.
IF YOU ARE ENTERING INTO THE RTOS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THE RTOS, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MAY NOT ACCESS OR USE THE WHIRLWIND ESTIMATOR.

2.  GRANT OF RIGHTS

Subject to your compliance with the terms and conditions set forth herein, in connection with your use of the Whirlwind Estimator for creating estimates for your Customers, Whirlwind grants you a (i) non-exclusive, non-transferable, non-sublicensable, revocable license to use the Whirlwind Estimator to generate, download, and make available to your Customers, an estimate which is intended for use in connection with your sale of the Whirlwind products and services (“Products”) to your Customers (each, a “Customer Estimate”), and (ii) a perpetual, non-exclusive, non-transferable, non-sublicensable, royalty-free right to use the Customer Estimates solely for the purpose of providing such Customer Estimate to Customers in connection with your sale of the Products to such Customers and for your internal business purposes as necessary to comply with applicable law and regulations and in compliance with your document retention policies. Whirlwind reserves the right terminate and/or suspend your access to the Whirlwind Estimator at any time and for any reason with no advanced notice to you.

3. RESTRICTIONS

You agree that as between you and Whirlwind, Whirlwind is and shall remain the sole and exclusive owner of the Customer Estimates (except for Your Data, as defined in the TOS), including without limitation all applicable templates, pricing information, models and other materials displayed therein. You agree not to modify any Customer Estimate generated by the Whirlwind Estimator other than as expressly permitted in writing by Whirlwind. You agree not to change any of the legal terms included in the Customer Estimate. You agree that Customer Estimates are non-binding quotes that the Whirlwind Estimator generates and Whirlwind shall not be bound by any terms therein. You agree to be bound by the terms of any definitive agreement governing your Customer’s use and purchase of any related Products. You acknowledge and agree that all other terms contained in this RTOS will apply to the Customer Estimates you provide to your Customers.

4.  MARKETING AND SALE PRODUCTS

In connection with your marketing and sale of the Products, you shall, at your own expense: (i) advertise, market, promote, distribute and sell the Products in a manner that is consistent with good business practice and in a manner that reflects favorable at all times on the Products and the good name, goodwill and reputation of Whirlwind; (ii) establish and maintain a qualified sales and marketing organization sufficient to comply with our obligations hereunder and to service your Customers; (iii) have and maintain sufficient knowledge of the industry and the Products, including the Products’ standard protocols and features and differences between the Products and competing products; and (iv) observe Whirlwind’s directions and instructions and Whirlwind’s policies concerning the marketing, advertisement, and promotion of the Products issued by Whirlwind from time to time. You understand and agree that Whirlwind may accept, modify or reject any quantity, delivery location, type or other component or terms of sale of any Products included in any Customer Estimate in its sole discretion and nothing in a Customer Estimate shall be binding upon Whirlwind unless and until a definitive agreement for the purchase and sale of Products is executed by Whirlwind. You understand and agree that delivery dates are not generated by the Whirlwind Estimator and applicable delivery dates shall be determined by Whirlwind after a definitive agreement for the purchase and sale of Products is executed. 

5.  PROHIBITED ACTS

You shall not: (i) engage in any unfair, anti-competitive, misleading or deceptive practices regarding Whirlwind or the Products; (ii) sell Products to any federal, state, local, or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority, or quasi-governmental authority (to the extent that the rules, regulations, or orders of this organization or authority have the force of law), or any arbitrator, court, or tribunal of competent jurisdiction, without express written approval from Whirlwind; or (iii) promise to Customer any warranties or guarantees in excess of what Whirlwind provides in each applicable Customer Estimate or purchase order.

6. REPORTING

You shall, at your own expense promptly notify Whirlwind of any complaint or adverse claim about the Products or their use or any potential product safety issue related to the Products of which you become aware.

7.  PAYMENT/CREDIT TERMS

You shall comply with all payment and credit terms as agreed to between you and Whirlwind regarding your resales of the Products.

8. PRICE ESCALATION

You understand and agree that if fabrication of any Products is delayed for any reason, including but not limited to, the request of a Customer or as described in a Customer Estimate, for a continuous period of fifteen (15) calendar days or more, the Products shall be subject to repricing by Whirlwind to reflect any increases in labor and/or material cost along with reasonable and normal profit margins on such increases, all of which you agree to pay to Whirlwind. If fuel surcharges imposed by freight lines increase by the time of shipment of any Products, the freight charges shown in the Customer Estimate shall increase by the amount of that increase, which you agree to pay to Whirlwind.

9. SHIPPING, TITLE AND RISK OF LOSS

All Products will be drop-shipped by Whirlwind ex works to each applicable designated Customer location(s). Title to all Products and all associated risk of loss and damage will pass to you upon Whirlwind’s delivery of such Products to the carrier and you shall protect, defend, indemnify and hold Whirlwind harmless from and against any loss or damage to the Products REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE IS CAUSED OR CONTRIBUTED TO BY THE NEGLIGENCE (INCLUDING ACTIVE, PASSIVE, SOLE, JOINT, CONCURRENT OR GROSS NEGLIGENCE) OF WHIRLWIND OR ANY OTHER FAULT ATTRIBUTABLE TO WHIRLWIND, INCLUDING STRICT LIABILITY.