General Terms and Conditions
The provisions herein contained constitute all of the terms and conditions of this contract. No changes or additions hereto shall be binding upon Seller unless in writing and signed by an authorized representative of Seller, Any terms of conditions of Purchaser’s order inconsistent herewith or in addition hereto shall be of no force and effect and are hereby expressly rejected and Purchaser’s order shall be governed by only the terms and conditions appearing herein.
PROPOSALS AND CONTRACT
Seller’s proposal when accepted and any resulting contract, are not subject to cancellation, suspension or reduction in amount, except with Seller’s written consent and upon terms, which reimburse Seller for work performed reasonable overhead and lost profit.
This invoice is due and payable 30 days from this date. After due date a service fee of 3% per month shall be added to unpaid balance. This is at the rate of 36% per annum. In event legal action must be taken to collect this account, purchaser agrees to pay a maximum of 33 1/3% attorney’s fees on the amount of the aggregate of unpaid balance, plus any service charges accrued.
Seller shall not be liable for any damage or penalty for delays in work due to acts of God, acts or omissions of the Purchaser, acts of civil or military authorities, Government regulations or priorities, fires, floods, epidemics, quarantine restrictions, war, riots, strikes, differences with workmen, accidents to machinery, car shortages, inability to obtain necessary labor, materials or manufacturing facilities, delay in transportation defaults of Sellers subcontractors, failure of or delay in furnishing correct or complete information by Purchaser with respect to location or other details of work to be performed hereunder, impossibility or impracticability of performance or any other cause beyond the control of Seller, whether or not similar to the foregoing. In the event of any delay caused as aforesaid. the completion shall be extended for a period equal to any such delay, and this contract shall not be void or avoidable as a result of any such delay. In case work is temporarily discontinued by reason of any of the foregoing, all unpaid installments of the contract price less an amount equal to the value of material and labor not furnished shall be due and payable upon receipt of the invoice by Purchaser.
In the event the work herein includes excavation the Purchaser shall pay as an extra to the contract price the cost for any additional work performed by the seller due to water, quicksand, rock or other unforeseen obstruction encountered or if shoring is required.
Purchaser shall furnish all necessary facilities for performance of its work by Seller, adequate space for storage and handling of material, light, water, heat, local telephone, watchman and crane and elevator service, If available, and necessary permits. Where wet pipe system is installed, Purchaser shall supply and maintain sufficient heat to prevent freezing of the system.
STRUCTURE AND SITE CONDITION
While employees of Seller will exercise reasonable care in this respect, Seller shall be under no responsibility for loss or damage due to character, condition or use of foundations, walls, or other structures not erected by II or resulting from excavation in proximity thereto, nor for damage resulting from concealed piping, wiring, fixtures or other equipment or conditions or water pressure. All shoring or protection of foundations, walls, or other structures subject to being disturbed by any excavation required hereunder shall be the responsibility of the Purchaser unless otherwise specified. Purchaser warrants the sufficiency of the structure to support the computer network system and its related equipment. The purchaser shall have all things in readiness for service, including, but not limited to other materials, floor or suitable working base, connections, and facilities at the time technician is onsite. In the event the purchaser fails to have all things in readiness for service at the jobsite, the Purchaser shall reimburse Seller for any and all expenses caused by such failure to have such things in readiness. Failure to make areas available to Seller during performance in accord with schedules, which are the basis of Seller’s proposal, shall be considered a failure to have all things in readiness for erection in accord with the terms of this contract.
Purchaser shall be responsible to coordinate the work of other trades (ducting, piping, electrical, etc.) and Purchaser shall be responsible for additional costs incurred by Seller arising out of interferences to Seller’s work caused by such other trades.
LIMITATIONS OF LIABILITY
The Seller makes NO WARRANTIES, EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. No promise not contained herein or affirmation of fact made by any employee. agent or representative of the Seller shall constitute a warranty by the seller or give rise to any liability or obligation. Seller’s liability to Purchaser for personal injury, death, or property damage arising from the performance under this contract shall be limited to the contract price. Purchaser shall hold Seller harmless from any and all third-party claims for personal injury, death or property damage, arising from Purchaser’s failure to maintain these systems or keep them in operative condition, whether based upon contract, warranty, tort, strict liability or otherwise. In no event shall Seller be liable for any special, indirect, incidental, consequential or liquidated, penal or any economical damage of any character. including but not limited to loss of use of the Purchaser’s property, lost profits or lost production, whether claimed by the Purchaser or by any third party, irrespective of whether claims or actions for such damages are based upon contract, warranty, negligence, tort, strict liability or otherwise.
Seller agrees that for a period of ninety (90) days after completion of said service it will, at its expense repair or replace defective materials or workmanship supplied or performed during this service/repair by Seller Upon completion of the service work, the system will be turned over to the Purchaser fully inspected tested, and in operative condition. As it is thereafter it is the responsibility of the Purchaser to maintain it in operative condition. It is understood that the Seller does not guarantee the operation of the system(s). Seller further warrants the products of other manufacturers supplied hereunder, to the extent of the warranty of the respective manufacturer but no longer than one-year. ALL OTHER EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OF FITNESS OR OTHERWISE ARE HEREBY EXCLUDED.
MODIFICATIONS AND SUBSTITUTIONS
Seller reserves the right to modify material of Seller’s design sold hereunder and/or the drawings and specifications relating thereto, or to substitute maternal of later design to fulfill this contract providing that the modifications or substitutions will not materially affect the performance of the material, or lessee in any way the utility of the material to the Purchaser.
Should any part, term, or provision of this contract be found by the courts to be illegal or in conflict with any law of the state where made, the validity of the remaining portions or provisions shall not be affected thereby.
Any assignment of this contract by Purchaser without the written consent of Seller shall be void. Seller may assign this contract to its subsidiaries and affiliates.
CHANGES, ALTERATIONS, ADDITIONS
Changes, alterations, and additions to the plans, specifications, or construction schedule for this contract shall be invalid unless approved in writing by seller. Changes approved by Seller, which increase or decrease the cost of work to Seller shall constitute a corresponding increase or decrease in the contract price as herein provided. The value of additional work shall be agreed upon in writing prior to the performance of said work. However, if no agreement is reached prior to the performance of additional work approved in the manner herein described, and Seller elects to continue performance so as to avoid delays, then the estimate of Seller’s Estimating Department as to the value of the work shall be deemed accepted by the Purchaser.
In addition to the prices specified herein, Purchaser shall pay for all extra work requested by Purchaser or made necessary because of incompleteness of or inaccuracy in plans or other information submitted by Purchaser with respect to location, type of occupancy, or other details of work to be performed hereunder. In the event the layout of Purchaser’s facilities has been altered, or is altered by Purchaser prior to completion of this contract, Purchaser shall advise Seller and prices, delivery. and completion dates quoted herein shall be changed by Seller as may be required.
For the purposes of any notice permitted or required to be given hereunder, such notice or notices shall be deemed given when received.
Any claims against Seller arising hereunder shall be deemed waived unless they are presented in writing, with particulars, within ten (10) days after they arise.
TERMS AND CONDITION/TECHNICAL SPECIFICATIONS
The terms and conditions specified herein shall be in addition to those put In Seller’s technical specifications and Seller’s authorized representative shall resolve any inconsistencies.
At the option of the Seller, any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration in accordance with the Rules of the American Arbitration Association, and judgment upon the award rendered by the Arbitrator(s} may be entered in any court having Jurisdiction thereof. Any arbitration proceeding shall be held in Louisiana.
Unless otherwise specified by Purchaser, all service work will be performed during regular working hours. If Purchaser shall require any overtime labor, purchaser agrees to reimburse Seller for the overtime premium cost including any related payroll costs, plus Seller’s overhead and profit, payable monthly, one (1) month after overtime expense was Incurred.
All specifications, drawings, designs, descriptive matter, and other data furnished by Seller to Purchaser pertaining to the work proposed herein shall be deemed proprietary and shall be kept In confidence by Purchaser and shall not be disclosed to any third party except as may be necessary in the performance of any contract with the Seller. In the event Seller requests the return of any such proprietary material and/or any reproductions thereof. Purchaser shall promptly return the same to Seller.
In case of any default by Purchaser, seller shall be entitled to payment for all work performed, all termination costs incurred, and any other costs incurred by Seller, including overhead and profit. All such remedies of Seller are cumulative and not exclusive Default by Purchaser shall consist of Failure to pay any Installment of price when due, no demand being necessary, or any act or omission on the part of Purchaser whereby Seller is prevented from completing said service. or receivership, bankruptcy, assignment for the benefit of creditors or any other form of insolvency proceedings by or against Purchaser or in case said premises or said system shall be attached, liened or seized by process of law and such attachment or lien shall not be vacated or seizure terminated within ten (10) days after its occurrence.
No charges shall be levied by the Purchaser against the Seller unless (48) hrs prior written notice is given to Seller to correct any alleged deficiencies/clean-up which necessitates such charges and unless d are the direct fault of Seller.