Terms and Conditions
Scope, Substitution, and Changes
- Contractor will use ordinary care to perform the scope of Work on Proposal for the agreed upon price. Customer acknowledges that it has made the choice as to equipment and specification and that Contractor has followed those instructions. Customer assumes liability for recommendations made by Contractor that are not accepted. If Contractor has made the equipment and specification determination, then the same is based upon the information provided by Customer to Contractor and is not an independent evaluation. Contractor will make commercially reasonable efforts to complete the Work in accordance with the timeline described on the Proposal.
- Contractor reserves the right and is authorized to make minor changes in the Work and substitutions of equipment, supplies, or materials which do not materially alter the quality, cost or time of performance of the Work or such equipment, supplies or materials without prior approval of Customer.
- Contractor will retain title to all materials and equipment until Customer has made all payments required by this Agreement.
During the progress of the Work under this Agreement, if Customer should order extra work not specified in the Proposal, Contractor may require such extra work to be considered a Proposal separate and aside from this Agreement and may require payment for said extra work in advance. Any and all changes to the Work, set-offs, deductions, or other changes to the Work must be agreed to in writing by Contractor to become enforceable.
- The Work is to be performed during Customer’s normal working hours unless otherwise stated in the Proposal. Warranty work is performed during Contractor’s normal business hours but can be performed after normal business hours if Customer pays the difference between the standard labor rate and overtime labor rate.
Term and Termination
The term of this Agreement shall be from the date the Proposal is signed by both Parties and shall continue until the Work described on such Proposal is completed.
Termination by Customer
Customer shall have the right to terminate this Agreement in the event of any other breach of this Agreement by Contractor that is not cured within ninety (90) days of Customer notifying Contractor of such breach.
Termination by Contractor
Contractor shall have the right to terminate this Agreement for cause; such cause shall include, but not be limited to, non-payment or any other breach of these Terms and Conditions. In the event of termination of the Agreement, Contractor shall be entitled to the value of the Work provided or incurred, including but not limited to design, installation, handling charges and administrative and collection costs and expenses. In the event that a breach is due to non-payment by Customer or other cause not entirely caused by the acts or omissions by Contractor, Contractor shall also be entitled to its lost profit for the project.
Definition of Confidential Information.
As used herein, “Confidential Information” means all confidential information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”) that is designated in writing as confidential as well as User Data, any materials relating to the Work, and the terms and conditions of this Agreement. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party.
The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information). If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
Warranties and Disclaimers
Each Party represents and warrants that it has the legal power to enter into this Agreement.
All materials, parts and equipment are warranted by the manufacturers’ or suppliers’ written warranty only. All Work performed by Contractor is warranted for ninety (90) days.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 4, THE WORK AND ALL OTHER EQUIPMENT, MATERIALS AND SERVICES PROVIDED BY CONTRACTOR IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND CONTRACTOR DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PURPOSE, OR NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY LAW. CONTRACTOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE WORK WILL MEET USER’S REQUIREMENTS OR THAT THE OPERATION OF THE WORK WILL BE UNINTERRUPTED OR ERROR-FREE. FURTHER, CONTRACTOR DOES NOT WARRANT THAT ALL ERRORS IN THE WORK CAN OR WILL BE CORRECTED.
Limitation of Liability
Exclusion of Consequential Damages
IN NO EVENT SHALL EITHER PARTY, OR ITS AFFILIATES, BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Limitations on Liability
THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY AND ITS AFFILIATES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF (I) THE TOTAL OF ALL AMOUNTS PAID FOR THE WORK DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OUT OF WHICH THE LIABILITY AROSE, OR (II) [TEN THOUSAND DOLLARS ($10,000)].
ANY CAUSE OF ACTION BY USER WITH RESPECT TO THE WORK (OR ANY INFORMATION, DOCUMENTATION, PRODUCTS OR SERVICES RELATED THERETO) MUST BE INSTITUTED WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED.
Contractor shall not be liable for the identification, detection, abatement, encapsulation, storage, removal or transportation of nay regulated or hazardous substances. Regulated or hazardous substances may include, but are not limited to, asbestos, certain refrigerants and refrigerant oils. If any such products or materials are encountered during the course of Work, Contractor may discontinue the Work until regulated or hazardous materials have been removed or the hazard has been eliminated. In the event of such delay caused by controlled or hazardous substances, Contractor shall be compensated by Customer for any loss due to the delay.
All disputes, differences or questions at any time arising out of or relating to the Work or as to any matter or thing arising out of this Agreement or in any way connected therewith (which cannot be settled by mutual agreement) shall be determined by binding arbitration instead of in courts of general jurisdiction. This arbitration provision shall survive termination of this Agreement.
Invoicing and Payment
Charges for the Work are as quoted on the applicable Proposal. Unless stated otherwise on the Proposal, a price quoted by Contractor is good for fifteen (15) days. All payments due pursuant to this Agreement shall be due and payable in US dollars by wire transfer or other means of immediate payment within thirty (30) days of the invoice date. Payment made later than thirty (30) days after the invoice date will incur an interest charge on the unpaid balance of the invoice(s) at the greater of (i) ten percent (10%) per annum or (ii) the highest allowable interest rate until such balance is paid. In the event of late payment or nonpayment by Customer of payments due, and in addition to the incurrence of interest and any other remedy of Contractor, Contractor reserves the right to immediately suspend the Work, without prior notice to Customer, until such payment is received. In the event of any suspension, the [completion date] shall be extended by the amount of such suspension. Contractor shall not be liable for any damage, loss or expense to Customer for such permitted work stoppage, and Customer shall pay Contractor for reasonable resulting restart expenses and costs actually incurred by Contractor on account thereof. Should Contractor retain the assistance of a third party, including without limitation an attorney, to assist with collection of unpaid amounts due and owing, Customer agrees to pay Contractor’s costs associated therewith including without limitation reasonable attorneys’ fees, court costs, and interest at the maximum allowable rate.
Unless expressly provided in such Proposal, the prices listed in the Proposal do not include taxes; if Contractor is required to pay sales, use, property, value-added or other taxes based on the provision of the Work or services related thereto, then such taxes shall be billed to and paid by Customer. This Section 8.2 shall not apply to taxes based on Contractor’s income.
Customer shall maintain property insurance upon the entire structure including all Work to be performed pursuant to this Agreement to the full insurable value thereof. This insurance shall inure against the perils of fire, theft, extended coverage, vandalism, and malicious mischief. Customer and Contractor waive all rights against each other for damages caused by insured perils whether or not such damage is caused by the fault or negligence of any party hereto.
This Agreement, inclusive of the General Terms and Subscription Addendums, amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto. In the event of an inconsistency between the terms and conditions of this Agreement and any Subscription Agreement now or hereafter appended hereto, the terms of the Subscription Agreement shall govern.
Neither Party may assign, sell or otherwise transfer this Agreement with the prior written consent of the other Party, such consent to not be unreasonably withheld.
Relationship of Customer and Contractor.
The Parties are independent contractors. This Agreement does not create a joint venture or partnership between the Parties; no Party is by virtue of this Agreement authorized as an agent, employee or representative of the other Party.
Modifications and Waiver.
No modification of, amendment or addition to this Agreement is valid or binding unless set forth in writing and fully executed by both Parties hereto. Any waiver of any right or remedy under this Agreement must be in writing and signed by each Party; provided, however, that Contractor may change these Terms and Conditions from time to time without notification to Customer and such revised Terms and Conditions will be updated on Contractor’s website ( www.dayandnightair.com/policies/commercial ). Customer acknowledges that such changes may be made and agrees to review these Terms and Conditions at Contractor’s website from time to time.
No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
The rights and obligations of the Parties and all interpretations and performance of this Agreement shall be governed by and construed in accordance with the laws of the state of Texas, USA, without regard to conflicts of laws principles. [The Parties irrevocably and unconditionally submit to the exclusive jurisdiction of the State and Federal courts located in Tarrant County, Texas, and all courts competent to hear appeals therefrom.] THE PARTIES WAIVE ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.
Any notices under this Agreement shall be in writing and shall be deemed to have been delivered: (i) upon personal delivery; (ii) the fifth (5th) business day after mailing; (iii) the third (3rd) business day after sending by confirmed facsimile; or (iv) the third (3rd) business day after sending by email. Notices to each Party should be sent to the contact information provided for such Party in the relevant Proposal.
If any sentence of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such sentence shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other sentences of this Agreement shall remain in full force and effect.
This Agreement may be executed and delivered electronically, and upon receipt such transmission shall be deemed a delivery of an original. This Agreement may be executed in several counterparts each of which when executed shall be deemed to be an original, and such counterparts shall each constitute one and the same instrument and notwithstanding their date of execution shall be deemed to bear the day and year first above written.
The Parties consent to electronic signatures for the purpose of executing this Agreement by e-mail or other electronic means, subject to compliance with any applicable laws, rules or regulations. Any such documents that are delivered electronically and accepted are deemed to be “in writing” to the same extent and with the same effect as if the Agreement had been signed manually. In no event shall the electronic execution expand such assent to include any terms other than those explicitly set forth in this Agreement.
Neither Party to this Agreement shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labor difficulties, governmental action, terrorism or pandemics, provided that the Party seeking to rely on such circumstances gives written notice of such circumstances to the other Party hereto and uses commercially reasonable efforts to overcome such circumstances.