Terms and Conditions - Continental Fire

General Provisions: The terms and conditions of this Agreement and any attached pages are an important part of this agreement and hereby incorporated by reference and accepted by Customer. This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement. No Changes or additions hereto shall be binding upon Continental Fire Sprinkler Company (CFSC) unless in writing and Signed by an authorized representative of CFSC. This Agreement does not cover systems, equipment, components or parts, which are below grade, behind walls or other obstructions or exterior to the building, electrical wiring, piping, or system upgrades. CFSC proposal, when accepted and any resulting agreement are not subject to cancellation, suspension or reduction in amount except with CFSC’s written consent and upon terms, which reimburse CFSC for work performed, plus reasonable overhead and profit.

Customer Responsibilities: Customer agrees to: Provide CFSC and/or its agents or assigns, access to the site at any reasonable time to perform the work described herein in Customer’s premises and to make all inspections, tests, and repairs as described here in Customer shall provide adequate heat (above 40 ° F ) to prevent the freezing of water in the sprinkler system. The inspection of Customer’s dry pipe sprinkler system does not ensure piping against freezing. Moisture build-up in the system varies with location and compressor running time. This must be maintained accordingly by Customer before freezing temperatures prevail and CFSC shall have no responsibility or liability for freezing. Customer shall furnish all necessary facilities for performance of its work by CFSC, adequate space for storage and handling of material, light, water, heat, local telephone, watchman and crane and elevator service, if available, and necessary permits. ASSIGNMENT: Neither party may assign this Agreement without the other party’s prior written consent, except to an affiliate.

Payment: Terms and payment are as set out in Paragraph a) of the AGREEMENT. Payment to Seller shall not be contingent upon settlement of any insurance claim of Customer. 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 Customer under this contract at a rate of 12% per annum, or such lower rate as is the maximum rate permitted under applicable law. Customer shall pay collection costs and attorney’s fees incurred in the collection of past due accounts, whether or not litigation has commenced. IF THE CUSTOMER FAILS TO MAKE ANY PAYMENT WHEN DUE, CFSC SHALL HAVE THE RIGHT, AT CFSC’S SOLE DISCRETION, TO STOP PREFORMING ANY WORK UNTIL THE ACCOUNT IS CURRENT. THE CUSTOMER’S FAILURE TO MAKE PAYMENT WHEN DUE IS A MATERIAL BREACH OF THIS AGREEMENT.

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 CUSTOMER AGREES TO PAY SUCH PROGRESS BILLING IN FULL.
THE PRICE FOR WORK TO BE PERFORMED UNDER THEIR AGREEMENT IS BASED UPON:
THE PREVAILING CFSC PRICES FOR MATERIAL, LABOR, AND RELATED ITEMS, IN EFFECT AT THE TIME SUPPLIED UNDER THIS AGREEMENT, or
A FIXED PRICE WHICH IS BASED ON THE SCOPE OF WORK OUTLINED UNDER THE “WORK DESCRIPTION” SECTION OF THIS AGREEMENT, or.
A PRICE “NOT TO EXCEED” WHICH IS BASED UPON THE SCOPE OF WORK OUTLINED UNDER THE “WORK DESCRIPTION” SECTION OF THIS AGREEMENT. THE PREVAILING CFSC 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 AGREED NOT TO EXCEED LIMIT PRICE QUOTED, OR (b) THE ACTUAL CUMULATIVE BILLING BASED ON THE AFORE MENTIONED PRICE.

Modification/Alterations/Change Orders: Changes, alterations and additions to the plans, specifications, or construction schedule for this Agreement shall be invalid unless approved in writing by CFSC through a Change Order. Stating the change in this Order and any adjustment in the Order price and/or the date of completion.

Delay: CFSC shall not be liable for any damages or penalty for delays in work due to acts of God, acts of omissions of the Customer, 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 CFSC’s subcontractors, failure of or delay in furnishing correct or complete information by Customer with respect to location or other details of work to be performed hereunder, impossibility or impracticability of performance or any other cause or cause beyond the control of CFSC. In the event of such delay, the agreed time for completion shall be extended for a period equal to any such delay. If 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.

WATER SUPPLY: CFSC shall not be liable or responsible for the adequacy or condition of the water supply, chemical makeup, or condition of shut values. Testing for MIC contaminates or the treatment of water supply and/or damage to piping installed resulting from untreated or contaminated water is excluded from any work performed by CFSC.

Hazardous Materials: The CUSTOMER represents that CFSC has been given written notice of any of the following hazards prior to the execution of this Agreement: “Permit confined space,” as defined by OSHA, risk of infectious disease, need for air monitoring, respiratory protection, or other medical risk, asbestos, asbestos-containing material, formaldehyde or other potentially toxic or otherwise hazardous material contained in or on the surface of the floors, walls, ceilings, insulation or other structural components of the area of any building where work is required to be performed under this Agreement. The entire above are hereinafter referred to as “hazardous conditions”. CFSC shall have the right to rely on the representations listed above. If hazardous conditions are encountered by CFSC during the course the work, the discovery of such materials shall constitute an event beyond CFSC control and CFSC shall have no obligation to further perform in the area where the hazardous conditions exist until the area has been made safe by the CUSTOMER, and the CUSTOMER shall pay disruption expenses and re-mobilization expenses incurred by CFSC. The CUSTOMER shall indemnify and hold CFSC harmless for any claims, liability or damages resulting from the exposure of workers to hazardous conditions, including damages for bodily injury and/or property damage, any consequential or indirect damages, and any attorneys’ fees and expert costs incurred in connection with any such event, whether or not the CUSTOMER has notified CFSC of the existence of said hazardous conditions. CFSC shall not be responsible for the testing, capture, containment, handling, transport, remediation or disposal of any hazardous waste materials, encountered. Said materials shall at all times remain the responsibility and property of the CUSTOMER.

Warranty: CFSC WARRANTS THAT ITS WORKMANSHIP AND MATERIAL FURNISHED UNDER THIS AGREEMENT WILL BE OF GOOD WORKMANSHIP AND MATERIALS. IF SUCH WORKMANSHIP AND MATERIALS ARE FOUND TO BE DEFECTIVE AND CLIENT PROVIDES CFSC WITH NOTICE WITHIN NINETY (90) DAYS AFTER COMPLETION, CFSC WILL REPERFORM SUCH DEFECTIVE WORK.. CFSC does not guarantee the operations of the system. CFSC warrants the product or equipment only to the extent warranted by the manufacturer or supplier. Final responsibility for the condition and operation of the System and equipment and components lies with the CUSTOMER. THE WARRANTIES OF CFSC AS SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES OR REMEDIES WHETHER STATUTORY, EXPRESS OR IMPLIED (INCLUDING ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE. NO OTHER WARRANTIES EXPRESS OR IMPLIED SHALL APPLY AND ARE EXPLICITLY DISCLAIMED AND THE REPERFORMANCE OF SUCH WORK SHALL BE CUSTOMER IS SOLE AND EXCLUSIVE REMEDY FOR SUCH WORK.

LIMITATION OF LIABILITY: It is understood and agreed by the CUSTOMER that CFSC is not an insurer and that insurance covering personal injury and property damage on the CUSTOMER’s premises shall be obtained by the CUSTOMER; that the Customer agrees to look exclusively to the Customer’s insurer to recover for injuries or damage in the event of any loss or injury; that the amounts payable to CFSC hereunder are based upon the value of the Work and the scope of liability set forth herein; and that CFSC is not guaranteeing that no loss will occur.

LIQUIDATED DAMAGES; LIMITATIONS OF REMEDY: Notwithstanding any other provision of this Agreement, in no event shall CFSC’s total aggregate liability to Client under this Agreement exceed the greater of (1) the amount of compensation actually paid to CFSC pursuant to this Agreement (2) insurance proceeds actually received by CFSC from its carrier. Notwithstanding any other provision of this Agreement, CFSC shall have no liability for rework, quantities differences, overruns, or any losses, damages or claims related to Owner’s property. If the Customer desires CFSC to assume greater liability, the parties shall amend this agreement by attaching a rider setting forth the amount of additional liability and the additional amount payable by the Customer for the assumption by CFSC of such greater liability, provided however that such rider shall in no way be interpreted to hold CFSC as an insurer

IN NO EVENT SHALL CFSC (INCLUDING ITS SUBCONTRACTORS AND AFFILIATES) BE LIABLE TO THE OWNER IN CONTRACT, IN TORT, BY OPERATION OF LAW, OR OTHERWISE FOR ANY SERVICING, ALTERATIONS, MODIFICATIONS, CHANGES, OR MOVEMENTS OF THE SYSTEM(S) OR ANY OF ITS COMPONENT PARTS BY THE CUSTOMER OR ANY THIRD PARTY, FOR ANY LOSS OF PROFIT OR REVENUE, LOSS OF USE, LOSS OF OPPORTUNITY, COST OF SUBSTITUTE FACILITIES, GOODS OR SERVICES, COST OF CAPITAL, COST OF REPLACEMENT POWER, GOVERNMENTAL AND REGULATORY SANCTIONS, CLAIMS FROM CUSTOMERS OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO PERFORMANCE OR NON PERFORMANCE UNDER THIS AGREEMENT. The Parties’ rights, liabilities, responsibilities, warranties and remedies with respect to this Agreement shall be those exclusively set forth in this Agreement and are in lieu of any others available at law, in equity or otherwise.

INSURANCE: The CUSTOMER shall name CFSC, its officers, employees, agents, subcontractors, suppliers, and representatives as additional insured’s on the CUSTOMER’s general liability and auto liability policies.

INDEMNITY:CFSC agrees to indemnify, hold harmless and defend Owner against any and all losses, damages, costs and expenses including reasonable defense costs, arising from any and all third party claims for personal injury, death, property damage to the extent arising in any way from the negligent act or omission of the CFSC relating in any way to this Agreement, including but not limited to the Work under this Agreement. CFSC reserves the right to select counsel to represent it in any such action. The CUSTOMER agrees to indemnify, hold harmless and defend CFSC against any and all losses, damages, costs and expenses including reasonable defense costs, arising from any and all third party claims for personal injury, death, property damage to the extent arising in any way from any negligent act or omission of the Customer relating in any way to this Agreement, including but not limited to the Work under this Agreement. CUSTOMER reserves the right to select counsel to represent it in any such action.

WAIVER OF SUBROGATION: The CUSTOMER does hereby, for itself and all others claiming for it under this Agreement, release and discharge CFSC from and against all hazards covered by the CUSTOMER’s insurance, it being expressly agreed and understood that no insurance company or insurer will have any right of subrogation against CFSC.

ONE-YEAR LIMITATION ON ACTIONS; CHOICE OF LAW: It is agreed that no suit, or cause of action or other proceeding shall be brought against either party more than one (1) year after the accrual of the cause of action or one (1) year after the claim arises, whichever is shorter, whether known or unknown when the claim arises or whether based on tort, contract, or any other legal theory. The laws of Nebraska shall govern the validity, enforceability, and interpretation of this Agreement. Disputes: Any controversy or claim arising out of or relating to this contract or the breach thereof shall, at the option of CFSC, 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 Douglas County, Nebraska. If any provision of this Agreement is held by any court or other competent authority to be void or unenforceable in whole or in part, this Agreement will continue to be valid as to the other provisions and the remainder of the affected provision. CFSC shall be entitled to recover from the Customer all reasonable legal fees incurred in connection with CFSC enforcing the terms and conditions of this agreement.