1. ACCEPTANCE. This quotation is accepted by Client’s written acceptance or purchase order within the time set forth on the face hereof. Acceptance of this quotation is expressly limited to the exact terms contained herein and any terms or conditions proposed by Client which are different from or in addition to this quotation are expressly rejected by Contractor. Any proposal for additional or different terms or any attempt by Client to vary or add to, in any degree, any of the terms of this quotation in Client’s acceptance shall not operate as a rejection of this offer, but shall be deemed a material alteration hereof, and this quotation shall be deemed accepted by Client without said additional or different terms. Any variance in the terms of the description, quantity, price or delivery schedule of the goods or services is deemed a rejection. If this quotation has been issued by Contractor in response to an offer, and if any terms herein are additional to or different from any terms of such offer, then the issuance of this quotation by Contractor shall constitute an acceptance of such offer subject to the express condition that Client assent to such additional and different terms herein, and acknowledge that this quotation constitutes the entire agreement between Client and Contractor with respect to the subject matter hereof and the subject matter of such offer; and Client shall be deemed to have so assented and acknowledged unless Client notifies Contractor to the contrary in writing within ten (10) days of receipt of this quotation.
2. INSPECTION. Prior to completion of the Project, Client shall have the right to inspect the Project, and may request alterations as the Client deems reasonably necessary. Any requested alterations are subject to Contractor’s approval and price adjustment for the Project. The Project shall be deemed accepted by Client upon signature of Client acknowledging completion or within 14 days from the last date Contractor performs services for the Project, whichever is earlier.
3. BILLING AND PAYMENT. The Deposit amount is due upon the Client’s acceptance of the quotation. The balance of the Project shall be paid by Client upon completion or acceptance of the Project, whichever is earlier. All amounts set forth in this agreement and to be paid to Contractor shall be in U.S. currency. If at any time, Client cancels a scheduled application appointment for the Project within 48 hours before the start time, a Cancelation Fee of 10% of the total balance will be added to the final balance due upon completion of the Project.
4. CLIENT RESPONSIBILITIES. Client shall obtain all required work permits or approvals by the relevant governmental authorities or governing body prior to Contractor commencing the Project. During the Project, Client shall make available: access to no less than three 110V outlets running on separate circuit breakers no less than 15 AMPS; access to water and an area for light cleaning of equipment; and access to an area for application refuse to be stored. Client shall be responsible for all application refuse disposal. Client shall be responsible for removal of any and all personal property, garbage, debris or other items prohibiting access to the application for the Project.
5. CHANGES – TERMINATION. Contractor, at any time, may change and amend this quotation due to unforeseen circumstances, including without limitation, substrate failure, compromise of the integrity/safety of any structure, and un-fulfilled Client responsibilities. Contractor may, at any time, reschedule an application for the Project due to inclement weather conditions to preserve the quality of the product application. Client acknowledges and agrees that any work performed in addition to the Project will be at an additional cost, and that any change orders or requested work will incur additional costs to be added to the Project price. Any such additional costs will be disclosed at the time of such change order or request for additional work. The parties agree that either may terminate this agreement due to a material breach by Contractor or Client of any of the terms or conditions of this agreement; or in the event Client fails to pay Contractor any amounts contemplated by this agreement. Client may terminate this agreement at any time with a refund of the Deposit, except if Client terminates this agreement or declines any or all application of the product within 48 hours of the scheduled application, then the deposit shall be nonrefundable. If Client terminates this agreement after the arrival of Contractor for application of the product for the Project, then Contractor shall be paid for the expenditures, commitments, liabilities, other costs and overhead expenses incurred with respect to the supply of goods and services, all as determined in accordance with good accounting practice by Contractor’s accountant, and shall be in addition to any other damages Contractor may have as set forth in Section 16.
6. LIMITED WARRANTY; EXCLUSION OF OTHER WARRANTIES. Contractor warrants that the product applied during the Project by it are free from defects in workmanship and materials under normal use and service, for a period of twelve (12) months from the date of application if under normal conditions of use and proper maintenance. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,STATUTORY OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Such warranty shall not apply to any defects resulting in whole or in part from incorrect information received from Client, substrate related issues, or the improper use or maintenance of the product. Contractor makes no warranty with respect to product manufactured by others. Contractor’s obligation under this warranty shall be strictly and exclusively limited to either of the following at Contractor’s sole discretion: (1) repair and re-application of the product, which are determined to be defective on inspection by an authorized representative of Contractor; or (2) reimbursement to Client for the reasonable repair or replacement of the defective product covered by this Limited Warranty. In the event Contractor elects the reimbursement option, it is the responsibility of Client to obtain and pay for any repairs or replacement. If, for any reason, it should be impractical, in Contractor’s sole discretion, to provide a repair and replacement of the product, Contractor may instead refund the amount paid for the Project. Contractor’s inability to correct, repair or replace a defective product or application of product despite using reasonable efforts to do so shall not render this limited remedy invalid or unenforceable as having failed its essential purpose. Notwithstanding any rule of law to the contrary, Client agrees that these warranty provisions and disclaimers shall be considered independent of the damage limitations and exclusions contained in Section 7 hereof, which limitations and exclusions shall survive notwithstanding the failure of any or all of the limited remedies contained herein. Written notification must be received by Contractor within the warranty period, or within thirty (30) days of any believed defect for a warranty claim, identifying yourself as having a warranty claim and description of the issue.
7. LIMITATION OF LIABILITY. In no event shall Contractor’s liability under any contract exceed the purchase price of the Project. CONTRACTOR SHALL NOT HAVE ANY LIABILITY WHATSOEVER FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF ANTICIPATED PROFITS, DAMAGE TO PROPERTY, SET-UP TIME OR MANUFACTURING DELAYS) INCLUDING BUT NOT LIMITED TO ANY LIABILITY ARISING IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE. THE PRICE STATED FOR CONTRACTOR’S PERFORMANCE UNDER THIS AGREEMENT IS A CONSIDERATION IN LIMITING CONTRACTOR’S LIABILITY HEREUNDER. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY CLIENT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. Notwithstanding any rule of law to the contrary, the damage limitations and exclusions contained in this Section 7 are to be considered independent of the limited remedies described in Section 6 hereof and shall survive and be fully enforceable without regard to Contractor’s breach of the express warranty, or the failure of any limited remedy, provided in Section 6 hereof.
8. INDEMNIFICATION. Client shall indemnify, defend and hold Contractor, its officers, agents and employees harmless from and against any and all liability, claims, demands, actions, losses, suits, damages, judgments, attorney fees, costs, charges, expenses and consequences of any liabilities, of any nature (including but not limited to personal injury, death, property damage and breach of contract claims) asserted by any person or entity, against Contractor in connection with or arising out of the application of the product for the Project.
9. INSURANCE – PROPERTY. Contractor agrees that it will have adequate insurance prior to the commencement of the Project and throughout the term of the Project for its employees, incurring loss or injury as a result of the acts of Contractor, its employees or subcontractors.
10. FORCE MAJEURE. Any delay or failure of either party to perform its obligations hereunder shall be excused, if, and to the extent that it is caused by an event or occurrence beyond the reasonable control of the party and without its fault or negligence, such as, by way of example and not by way of limitation, acts of God, action by any government authority (whether valid or invalid), fires, floods, windstorms, lightning, explosions, riots, natural disasters, wars, sabotage, labor problems (including lockouts, strikes and slowdowns), inability to obtain power, material, labor, equipment or transportation, or court injunction or order; provided that written notice of such delay (including the anticipated duration of the delay) shall be given by the affected party to the other party within ten (10) days. If Contractor is delayed at any time in the commencement or progress of its work for the Project due to an act or neglect of Client, an architect or any subcontractor hired by Client, or of an employee of either, then the Project shall be extended for such reasonable time as Contractor may determine in its sole discretion.
11. CONTRACTOR RIGHTS & RESPONSIBILIITES. Contractor has the sole right and unfettered discretion to control and direct the means, manner and method by which the product is applied and the services will be performed for the Project. Contractor shall not be limited in the amount of noise or dust due to equipment for application. Contractor shall have the right and sole discretion to use any subcontractor for the completion of the Project, in whole or in part. In the event Contractor uses a subcontractor, Contractor shall be solely responsible for the payment of fees to the subcontractor for the work performed. Contractor shall be solely responsible for the payment of all wages for any of its employees. No contracted work or monies are to be exchanged between Client and a subcontractor for no less than a two year period without written permission from Contractor for any goods or services related to or in competition with Contractor.
12. RELATIONSHIP OF PARTIES. Contractor and Client are independent contracting parties and nothing in this quotation shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligations on behalf of or in the name of the other.
13. ASSIGNMENT. Neither this quotation nor any rights or obligations created as a result of any of its duties hereunder without, in either case, Contractor’s prior written consent. Contractor retains the right to assign its rights and obligations created as a result hereof.
14. NO IMPLIED WAIVER. The failure of either party at any time to require performance by the other party of any provision of this quotation shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver of either party of a breach of any provision of this quotation constitute a waiver of any succeeding breach of the same or any other provision.
15. APPLICABLE LAW & JURISDICTION. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application to this Agreement of the laws of any jurisdiction other than the State of Michigan. Each party irrevocable and unconditionally agrees that any and all claims or disputes arising out of or in connection with any aspect of this agreement shall be exclusively subject to binding arbitration. Such arbitration shall be conducted in Oakland County, Michigan, and shall proceed under the national rules for the resolution of commercial disputes of the American Arbitration Association (“AAA”). Purchaser must pay the initial filing fee to AAA for filing a written Demand for Arbitration with AAA. The arbitrator’s fees and any administrative fees charged by AAA will be initially paid equally by each party subject to reallocation in accordance with the final arbitration award. The arbitration shall provide each party with all substantive rights and remedies including any applicable damages provided under any pertinent statute(s) related to such claims, the right to representation by counsel, a neutral arbitrator, a reasonable opportunity for discovery, a fair arbitral hearing, a written arbitral award containing findings of facts and conclusions of law, and any other provision required by law, shall be available in the AAA forum. Any decision of the Arbitrator shall be final and binding as to both parties, and enforceable by any court of competent jurisdiction.
16. CONTRACTOR’S DAMAGES. Contractor’s damages for breach of any resulting contract by Client shall include, but not limited to, all of Contractor’s expenditures in preparation for performance or actual performance of the contract, the pro rata share of Contractor’s overhead attributable to Contractor’s performance, Contractor’s lost profits and any other incidental or consequential damages sustained by Contractor. Contractor shall also be permitted to recover any actual and reasonable attorney’s fees and costs incurred in enforcing its rights hereunder.
17. MISCELLANEOUS.
(a) Due to events and matters that are often beyond the control of Contractor, Contractor cannot make quotations or accept orders which should necessitate the posting of a performance bond or monies providing for penalties for late delivery. This quotation is made pursuant to the understanding that no such bond, or its equivalent, is or will be required. If such is required, then Contractor has the right to terminate this agreement, and Contractor shall have no liability to Client, and the agreement between Client and Contractor shall be null and void.
(b) Stenographic and clerical errors are subject to correction.
18. SEVERABILITY. The terms and conditions of this quotation are severable and should any term(s) or condition(s) should be held invalid, void or unenforceable, such term(s) or condition(s) shall be deemed stricken and the remaining term(s) and condition(s) shall remain in full force and effect.
19. ENTIRE AGREEMENT. This quotation, together with any attachments, exhibits, supplements or other referenced documents in this quotation, constitutes the entire agreement of the parties and is a complete and exclusive statement of those terms with respect to the matters contained in this quotation and supersedes all prior oral or written representations and agreements. No waiver, modification, or addition to any of the provisions of this quotation shall be binding, including but not limited to usage of trade, course of dealings or course of performance, unless made in writing by Contractor.