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 or conditions of Purchaser’s order inconsistent herewith or in addition hereto shall be of no force and effects and are hereby expressly rejected and, Purchaser’s order shall be governed by only the terms and conditions appearing herein.
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, plus reasonable overhead and profit.
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. If the work to be furnished hereunder constitutes an addition to Purchaser’s existing facilities, prices and delivery and completion dates quoted herein are based on information, if any, with respect to layout of such facilities now contained in Seller's engineering records. 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 of any such alterations, and prices and delivery and completion dates quoted herein shall be changed by Seller as may be required because of such alterations. Unless prices are stated by Seller in this or other documents forming a part of the contract, the prices applicable to the extra work performed shall be Seller’s prices in effect at that time.
Terms and payment have been set out in Paragraph A of the AGREEMENT. Purchaser agrees that payment to Seller shall not be contingent upon settlement of any insurance claim of Purchaser. Final payment shall be in all cases due and payable with ten (10) days after final billing. A service charge will be charged and added to the prices on all payments past due and owed by the Purchaser under this contract, and at a rate of 12% per annum, or, if such rate is prohibited under applicable law, than at such lower rate as is the maximum rate permitted to be contracted for under such applicable law. Purchaser shall pay any reasonable attorney's fees incurred in the collection of past due accounts.
Sellers shall not be liable for any damage or penalty for delays in work due to acts of God, acts of 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 Seller's 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 or performance or any other cause or 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 voidable as a result of any such delay. If 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 invoice.
While employees of the Seller will exercise reasonable care in this respect, Seller shall be under no responsibility for loss or damage due to the character, condition or use of foundations, walls, or other structures not erected by it or resulting from excavation in proximity thereto, nor for damage resulting from concealed piping, wiring, fixtures or other equipment or condition of 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 Purchaser unless otherwise specified. Purchaser warrants the sufficiency of the structure to support the sprinkler system and its related equipment (including tanks). The Purchaser shall have all things in readiness for installation, including, but not limited to, other materials, floor or suitable working base, connections and facilities for erection at the time the materials are delivered, in the event the Purchaser shall fail to have all things in readiness for erection at the time of receipt of the materials at the place of erection 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 accordance with schedules, which are the basis of Seller's proposal, shall be considered a failure to have all things in readiness for erection in accordance with the terms of this contract.
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. When dry pipe is installed, the Purchaser assumes full responsibility for indicating all dry system(s) low point drain to the Seller's service personnel during the course of the Seller’s work, to prevent the possible subsequent freezing of these sections of the piping system(s), if they are not drained.
When the Seller does the excavating, if water, Quicksand, rocks, or other unforeseen obstructions are encountered or shoring is required, Purchaser shall pay for as extra to the contract price any additional work involved at Seller's prices for such work then in effect.
Sellers shall not be liable on any claims for direct, indirect or consequential damages whether or not such claim is based in contract or tort or occasioned by Seller's active or passive negligence. Seller's liability on any claim for loss or liability arising out of or connected with this contract or any obligation resulting there from or from the manufacture, fabrication, sale, delivery, installation, or use of any materials shall be limited to that set forth in the paragraph entitled "warranty."
Seller agrees that for a period of ninety (90) days after completion of said work it will, at its expense, repair or replace any defective materials or workmanship supplied or performed by Seller. It is understood that the Seller does not guarantee the operation of the system. Seller further warrants the products of other manufactures supplied hereunder, to the extent of the warranty of the respective manufacturer.
All OTHER EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OR OTHERWISE ARE HERBY EXCLUDED.
Seller reserves the right to modify material of Seller's design sold hereunder and/or the drawings and specifications relating thereto, or to substitute material of later design to fulfill this contract providing that the modifications of substitutions will not materially affect the performance of the material, or lessen in any way the utility of the material to the Purchaser.
If any provisions of the entire contract shall be invalid or unenforceable under the laws of the jurisdiction applicable to the entire contract, such invalidity or unenforceable shall not invalidate or render unenforceable the entire contract, but the entire contract shall be construed as if not containing the particular invalid or unenforceability provisions, and the rights and obligations of Seller and the Purchaser shall be construed and enforced accordingly.
Any assignment of this contract by Purchaser without the written consent of Seller shall be void. Seller may assign to its subsidiaries and affiliates.
Changes, alterations and additions to the plans, specifications, or construction schedule for this contract shall be invalid unless approved in writing by Seller. For any such changes approved by Seller in this manner, which will increase or decrease the cost and expense of work to Seller, there shall be a corresponding increase or decrease in the contract price herein provided. The value of additional work shall be agreed upon prior to the performance of additional work approved in the manner herein described, and if 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.
The Seller will only test new work under high pressure and any high pressure tests required on the existing sprinkler system(s) will be done as an extra to the contract price. All work required to make the existing sprinkler system(s) tight or to rearrange sprinkler lines to insure proper drainage of such system(s) including any necessary removal of buildup scale, foreign materials, or wet sediment from dry systems(s) piping is the responsibility of the Purchaser, and will be done as an extra to the contract price. The Purchaser assumes full responsibility for the condition of the existing sprinkler systems(s) and for water or other damage resulting directly or indirectly from such condition or the application of the tests or flushing pressures.
For the purpose 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 must be presented in writing, with particulars, within ten (10) days after they arise.
All data provided by Seller including all information contained in drawings and specifications submitted in connection with this contract shall be deemed proprietary and such data and information shall not be disclosed to others or used for any purpose except in connection with this contract without the express written consent of Seller.
The terms and conditions specified herein shall be in addition to those set out in Seller's technical specifications and any inconsistencies shall be resolved by Seller's authorized representative.
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 into any court having jurisdiction thereof. Any arbitration proceeding shall be held in Maricopa County, Arizona.
Unless otherwise specified by Purchaser all installation work will be performed during regular working hours. If Purchaser shall require any overtime labor, Purchaser agrees to reimburse Seller for the overtime premium on the same. If overtime labor is required on an emergency basis, Purchaser agrees to reimburse Seller for same.
All loss or damage from any cause (not the fault of Seller) to the materials, tools, equipment, work or workmen of the Seller or its agents or subcontractor while in or about the premises of the Purchaser shall be borne and paid for by the Purchaser.
In case of any default by Purchaser, Seller may declare the contract price or all unpaid installments thereof to be immediately due and payable (whether or not said work shall have been completed) or may enter said premises and shut off the water from said system or remove all or any portion of the same. 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 ally act or omission on the part of Purchaser whereby Seller is prevented from completing said installation, 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, lieneed 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.
A. TERMS OF PAYMENT ARE NET TEN (10) DAYS FROM DATE OF INVOICE. INVOICES MAY BE RENDERED ON A PROGRESS BASIS FOR WORK COMPLETED THROUGH THE DATE OF INVOICING, AND PURCHASER AGREES TO PAY SUCH PROGRESS BILLING IN FULL, IN ACCORDANCE WITH THE PAYMENT TERMS SPECIFIED ABOVE.
B. THE PRICE FOR WORK TO BE PERFORMED UNDER THEIR AGREEMENT IS BASED UPON:
1. THE PREVAILING AERO AUTOMATIC SPRINKLER CO. PRICES FOR MATERIAL, LABOR, AND RELATED ITEMS, IN EFFECT AT THE TIME SUPPLIED UNDER THIS AGREEMENT.
2. A FIXED PRICE WHICH IS BASED ON THE SCOPE OF WORK OUTLINED UNDER THE"WORK DESCRIPTION" SECTION OF THIS AGREEMENT.
3. A PRICE "NOT TO EXCEED" WHICH IS BASED UPON THE SCOPE OF WORK OUTLINED UNDER THE "WORK DESCRIPTION" SECTION OF THIS AGREEMENT.THE PREVAILING AERO AUTOMATIC SPRINKLER CO. PRICES ARE FOR MATERIAL, LABOR, AND RELATED ITEMS IN EFFECT AT THE TIME SUPPLIED UNDER THIS AGREEMENT WILL APPLY. THE COST TO THE PURCHASER WILL BE THE LESSER OR (a.) THE LIMIT PRICE QUOTED, OR (b.) THE ACTUAL CUMULATIVE BILLING BASED ON THE AFORE MENTIONED PRICE.
In the event a sprinkler system is being converted from a wet system, this contract does not include any appropriation for possible repairs to the existing wet pipe system in order that it may be tight at the required air pressure. Nor does the contract include any labor or material necessary for rearrangement of lines to insure proper drainage thereof. Any labor or material necessary to make this system tight under air pressure and to change the drainage on lines will be charged as an extra to the contract price.
Purchaser agrees to indemnify and hold harmless the Seller from and against any claims, demands or damages resulting from the enforcement of the Occupational Safety Health Act (Public Law 91 •596), unless said claims, demands or damages are a direct result of causes within the exclusive control of Seller. In the event that the Seller's employees or others are or may be exposed to asbestos fibers during the performance of this contract, all additional costs necessary to protect such individuals, including but not limited to all costs for "Qualified Laboratory Sample Test" of any work area for asbestos exposure concentrations shall be paid by Purchaser and Purchaser agrees to indemnify Seller against all claims, injury or damages.