1. Scope of Services. Contractor shall provide those goods and/or services (the “Work”) described in the proposal to which these Terms and Conditions are attached (the “Proposal”), which, upon execution, together with the Proposal, shall become a binding contract enforceable against the Customer (the “Contract”).
2. Scheduling. Contractor recognizes and agrees that time is of the essence in the performance of the Services. The Work shall be performed on a schedule determined by Contractor. Contractor shall have the right to revise such schedule upon written notice to Customer. Contractor shall not be liable for delay or default in delivery resulting from any cause beyond Contractor's reasonable control, including, but not limited to, governmental action, strikes or other labor troubles, fire, damage or destruction of goods, wars (declared or undeclared), acts of terrorism, manufacturers' shortages, availability or timeliness of transportation, materials, fuels or supplies, and acts of God (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event: (a) the time for Contractor's performance shall be extended reasonably and the parties shall adjust all affected dates accordingly; (b) the purchase price shall be adjusted for any increased costs to Contractor resulting from such Force Majeure Event; and (c) Customer shall not be entitled to any other remedy.
3. Invoicing and Payment. Customer will pay Contractor in full for the Work within thirty (30) days of the date of the invoice, payable in United States of America (“U.S.”) dollars. Payment due hereunder shall be made in the form of cash, check, money order, ACH, or other tender approved in writing by Contractor. Contractor will not accept payments for credit accounts made by credit card or other fee-bearing payment methods. Contractor may, in its sole discretion, apply Customer's payment against any open charges. Past due accounts bear interest at the lesser of 1.5% per month or the maximum rate permitted by applicable law, continuing after Contractor obtains judgment against Customer. Contractor may exercise setoff or recoupment to apply to or satisfy Customer’s outstanding debt. Customer shall have no right of setoff hereunder, the same being expressly waived hereby. Contractor expressly reserves its right to file liens in the ordinary course of business per applicable law and expressly disclaims any request for a waiver of lien rights by Customer. Contractor reserves all rights to invoice and be paid for Work provided to Customer, and any terms contained in any of Customer's purchase orders or other documents that purport to limit in any way the time or manner within which Contractor may invoice Customer are hereby waived by Customer.
4. Collection Costs. Customer shall pay Contractor all costs and expenses of collection, suit, or other legal action brought as a result of the commercial relationship between them, including, but not limited to, all actual attorneys' and paralegals' fees and expenses, and collection costs, incurred pre-suit, through trial, on appeal, and in any administrative or bankruptcy proceedings. Any cause of action that Contractor has against Customer may be assigned without Customer's consent to HD Supply, Inc. or to any affiliate, parent or subsidiary of HD Supply, Inc.
5. Customer Information. All reports, drawings, plans, or other documents (or copies) furnished to Contractor by Customer shall, at Customer’s written request, be returned upon completion of the Work to be performed hereunder; Contractor may retain one (1) copy of all such documents for reference purposes only.
6. Changes. Customer, without invalidating the Contract, may at any time prior to delivery or completion of the Work, order extra work or make changes by altering, adding to or deducting from the Work, the Contract sum being adjusted accordingly. All such extra or changed work shall be authorized by a written order to Contractor signed by Customer and Contractor authorizing extra or a change in the Work or an adjustment in the Contract sum or the Construction schedule, as applicable (a “Change Order”). Upon receipt of such Change Order executed by Customer and Contractor, Contractor shall promptly proceed with such extra or changed work involved and such extra or changed work will constitute a portion of the Work.
7. Term and Termination. The Contract shall remain in effect until the Work has been completed, provided that either party shall have the right to terminate the Contract for cause, after providing the other party with written notice stating the cause for termination in reasonable detail, and allowing the other party thirty (30) days to cure the alleged default. Upon the effective date of such termination, (a) Contractor shall immediately cease performance of the Work, and (b) Contractor shall be entitled to compensation for the performance of the portion of the Work actually performed to the effective date of such termination. Customer certifies that it is solvent and that it will advise Contractor immediately if it becomes insolvent. Customer agrees to send Contractor written notice of any changes in the form of ownership of Customer's business within five (5) business days of such changes.
8. Limited Warranty. All laborers and workers, while working in and around the Work site, shall act in a professional manner. Contractor shall enforce proper discipline and decorum among all laborers and workers on the Work site and shall control, among other things: i) noise, including music; ii) the use of offensive language; iii) smoking or drinking of alcoholic beverages on the Work site; iv) physical violence; v) riding in the passenger elevators; vi) thievery; and vii) the transportation of articles or materials deemed hazardous. If Customer determines, in its sole discretion, that any laborer or worker needs to be removed due to his or her failure to comply with the terms of this provision, Contractor shall remove such laborer or worker from the Work site immediately. Upon notice from Customer, Contractor shall promptly remedy any such Work that is found not to be in accordance with the Contract Documents, and pay for actual damage to other work resulting therefrom which shall appear within a one (1) year period from the actual date of final completion of such Work. CONTRACTOR EXCLUDES AND DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Contractor’s warranty excludes remedy for damage or defect caused by abuse, modifications not executed by Contractor, improper or insufficient maintenance, improper operation or normal wear and tear under normal usage.
9. Independent Contractor. Contractor is, and shall perform the Work under this Contract as, an independent contractor.
10. Insurance. Contractor shall purchase and maintain, at its sole expense, commercial general liability and automobile liability insurance with limits of no less than $1,000,000 each occurrence and in the aggregate. The commercial general liability insurance shall cover all labor, materials or services furnished hereunder and shall include a contractual liability endorsement. Contractor’s liability insurance shall include the Indemnified Parties (as hereinafter defined) as additional insureds (the “Additional Insureds” only for claims caused by the Contractor). Contractor shall also purchase and maintain workers compensation insurance as required by Laws and shall furnish Customer with evidence of such insurance. Contractor shall furnish Customer with certificates of insurance before any Work is started and any materials are delivered to the site. Failure to provide certificates of insurance shall not relieve Contractor of its contractual obligations and Contractor shall remain liable for each of the insurance obligations set forth hereunder.
11. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT, WHETHER IN CONTRACT, WARRANTY, INDEMNITY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING DIRECTLY OR INDIRECTLY OUT OF THE PERFORMANCE OR BREACH OF THESE TERMS, SHALL CONTRACTOR BE LIABLE FOR (a) ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR SIMILAR DAMAGES SUCH AS LOSS OF USE, LOST PROFITS, ATTORNEYS' FEES OR DELAY DAMAGES, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR CAUSED BY CONTRACTOR'S BREACH OF THIS CONTRACT, (b) ANY CLAIM THAT PROPERLY IS A CLAIM AGAINST A MANUFACTURER, OR (c) ANY AMOUNT EXCEEDING THE AMOUNT PAID TO CONTRACTOR FOR GOODS FURNISHED TO CUSTOMER THAT ARE THE SUBJECT OF SUCH CLAIM(S). ALL CLAIMS MUST BE BROUGHT WITHIN ONE (1) YEAR OF ACCRUAL OF A CAUSE OF ACTION.
12. Indemnification. To the fullest extent permitted by law, Contractor shall indemnify, protect, defend and hold Customer, its affiliates, parent and subsidiary entities, and their respective partners, managers, members, employees, officers, directors, trustees, shareholders, counsel, representatives, agents, successors and assigns (the "Indemnified Parties") free and harmless from actual and direct liabilities, penalties, fines, losses, claims, demands, actions, suits and costs (including, without limitation, reasonable attorneys’ fees), to the extent caused by the Contractor’s negligent acts or willful misconduct in its performance of the Work; provided that no person or entity indemnified hereunder shall be indemnified for claims arising from such person’s or entity’s own negligence.
13. Assignment. Neither party shall have the right to assign its rights or obligations under the Contract without the other party’s prior written consent, which consent shall not be unreasonably withheld. Contractor may assign this Contract to any affiliate, subsidiary or successor in interest. Customer and Contractor are the only intended beneficiaries of this document, and there are no third party beneficiaries.
14. Safety Precautions. Contractor shall take all reasonable safety precautions with respect to the Work performed under this Contract and shall use commercially reasonable efforts to comply with all safety measures initiated by Customer and provided to Contractor.
15. General Terms. Neither party shall bring claims or lawsuits against any principals, employees, agents, officers, directors, stockholders, partners or affiliates of the other parties. Any dispute arising out of, relating to or concerning this Contract shall, as a condition precedent to any arbitration or court proceeding, be mediated by the parties. The parties shall mutually agree upon a mediator, and shall schedule and conduct mediation at a mutually convenient time and place. Each party shall bear its own costs, fees and expenses associated with such mediation, except that the parties agree to split equally the costs and expenses of the mediator and the conduct of the mediation itself. Any dispute which is not resolved by mediation and which arises out of, relates to or concerns this Contract may, at the sole option of Contractor, be resolved by arbitration administered by the American Arbitration Association under its commercial arbitration rules (except that discovery shall be permitted in accordance with the Federal Rules of Civil Procedure), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. All arbitration hearings shall be conducted in Atlanta, Georgia. Each party will bear its own costs, fees, and expenses associated with any arbitration, except that the parties agree to split equally the costs and expenses of the arbitrator or panel and the conduct of the arbitration itself. If Contractor does not elect to submit a dispute to arbitration, the parties agree that any civil action to decide such dispute shall be brought in either the US District Court for the Northern District of Georgia, Atlanta Division, or the Superior Court of Cobb County, Georgia. Notwithstanding any provision to the contrary, Supplier agrees to bring any claim or dispute against Contractor (including payment disputes) within one year after the occurrence of the event giving rise to such dispute. The laws of the State of Georgia, excluding its conflicts of law rules, shall govern this Contract, and all disputes arising out of or relating thereto. The parties specifically exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to (a) the sale of goods hereunder, (b) the contractual relationship created under this Agreement, and (c) the construction, validity, enforcement, and interpretation of this Agreement. EACH PARTY HEREBY WAIVES AND RELEASES ITS RIGHT TO CLAIM A TRIAL BY JURY WITH RESPECT TO ANY ACTION BY OR AGAINST THE OTHER PARTY ARISING HEREUNDER. This Contract represents the entire agreement by and between Customer and Contractor with respect to the Work to be performed under this Contract and all other matters contained herein and supersedes all prior negotiations, representations, proposals, or agreements regarding the Work or such other matters. This Contract may be modified or supplemented only by a written instrument signed by both Customer and Contractor. No waiver by either party hereto of any term or provision hereof shall constitute or signify a continuing waiver of any such term or provision, or of any other terms or provisions under this Contract.
