TERMS AND CONDITIONS
1. TIME FOR PERFORMANCE: Timothy Park’s Construction, Inc., hereinafter referred to as “The Company” will not be responsible for any delay or delays that are indirectly, result from, or contributed to by, the Customer’s failure to perform its obligations hereunder, or by any cause beyond Company’s reasonable control, including but not limited to: fire, flood, or other act of god: strike or other labor disagreement; acts or requirements of governmental or other civil actions: riot, war, embargo, shortage of labor, materials, or energy. If equipment, materials, personnel, or supplies remain on customer’s site at Customer’s request during such a period delay, invoices will be rendered in accordance with the description of work set forth herein (the “Scope of Support”), and customer will also pay the Company for all extra costs and expenses by the company.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY: The Company shall perform the Services in material conformance with all applicable local, state, and federal Laws, regulations, and guidelines an in conformance with Company’s scope of work.
3. EXCLUSION OF OTHER REPRESENTATIONS AND WARRANTIES: THE REPRESENTATIONS AND WARRANTIES GIVEN IN PARAGRAPH 2 ARE THE ONLY REPRESENTATIONS AND WARRANTIES GIVEN BY THE COMPANY WITH RESPECT TO THE SERVICES TO BE PERFORMED IN CONNECTION HEREWITH AND ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING IMPLIED WARRANTIES OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4. LIMITATION OF REMEDIES: In the event of the Company’s liability, whether based on contract, tort (including, but not limited to, negligence, strict liability, or otherwise), customer’s sole and exclusive remedy will be limited to, at the Company’s portion, replacement or correction of any Services not in the conformance with Company’s scope of work or these Terms and Conditions, or the repayment of the portion of the purchase price paid by Customer attributable to the nonconforming Services. THE COMPANY WILL NOT BE LIABLE FOR ANY OTHER DAMAGES, DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL OR OTHERWISE, AND IN NO EVENT SHALL THE COMPANY’S LIABILITY EXCEED THE PRICE PAID FOR THE NONCONFORMING SERVICES.
5. LIMITATIONS OF LIABILITY: The Company shall not be liable for any liabilities, claims, demands, expenses, or losses incurred by the customer or other parties as a result of any claim, suit, or proceeding based on (i) changes in applicable laws or regulations after Company’s services are completed; (ii) acts or occurrences outside the Scope of the services; (iii) release of toxic materials or hazardous substances to the equipment which are not a result of the
6. TERMS AND METHODS OF PAYMENT: Unless otherwise agreed in writing, itemized invoices will be submitted for payment to Customer either (i) every week or (ii) upon completion of the Services whichever time is the lesser.
(a) All invoices are due and payable upon receipt.
(b) All payments received fifteen (15) days after the invoice date will be assessed a late payment service charge of 18 % per annum. All payments received will be applied first to unpaid late payment service charges then to the invoice balance.
(c) The Company may, at any time, suspend performance of its services, or require security or other adequate assurance satisfactory to the Company, when in the Company’s opinion the financial condition of Customer or other grounds for insecurity warrant such action.
7. DELINQUENT PAYMENTS: In the event Customer fails to make any payment when due, the Customer shall pay, in addition to all other sums payable hereunder, the reasonable costs and expenses incurred by the Company in connection with all actions taken to enforce collection or to preserve and protect its rights hereunder, whether by legal proceedings or otherwise, including, without limitation, reasonable attorneys’ fees and court costs.
8. CLAIMS: Unless otherwise agreed in writing, claims relating in any way to any portion of the Company’s services must be made promptly within two (2) days after such services are performed and must be confirmed in writing within five (5) days thereafter. In no event shall Customer hold back payment for invoices during any period such claims are pending.
9. CANCELLATION POLICY AND REFUNDS: If a customer decides to cancel a job or project prior to the actual work commenced, Company shall be entitled to all costs associated with the project up to and until a written cancellation notice is received. The remaining balance of any deposit after said costs are set off will be returned to the customer within 10 business days.
10. TAXES: Unless otherwise agreed in writing, Customer shall be responsible for all sales, use, excise, or other tax.
11. APPROVALS, PERMITS, LICENSES, ETC.: Unless otherwise agreed upon in writing Customer shall be responsible for securing, at its expense all necessary permits, approvals, easements, and judicial and/or administrative orders to enable the Company to perform the Services.
12. SITE CONDITIONS: Customer shall furnish the following information to the Company with the respect to the site on which the Company’s services are to be performed (the “Site”): (i) the physical characteristics (ii) soil reports and subsurface investigations; (iii) legal limitations and restrictions; (iv) utility locations; (v) legal description and survey; (vi) other reports or documents which may be reasonably requested by the company. Customer shall also advise the Company of any special chemical or physical hazards associated with the Site and materials to be handled by the Company in performances of its services.
13. UTILITIES: Unless otherwise agreed in writing, Customer shall provide, at its expense, all utilities necessary to perform Company’s services.
14. WASTES: All wastes resulting from the performance of Company’s services shall remain the property of the Customer. The Company assumes no liability arising from the pumping, handling, storage, transportation, or disposal of such wastes unless otherwise agreed in writing. In performances of its Services, the Company assumes no responsibility for waste materials or contamination located on Customer’s Site.
(a) Customer shall indemnify and hold Company harmless against any and all labilities, claims, demands, expenses, or losses resulting from (i) the performance of the Company’s services in compliance with the Customer’s instructions or specifications, (ii) the negligent or intentional acts or omissions of Customer, it’s employees, officers, agents, directors or subcontractors, (iii) release of toxic materials or hazardous substances to the environment which are not a result of the gross negligence or willful misconduct of the Company; or (iv) failure of Customer to obtain required permits, licenses, approvals, easements, or order as herein required.
(b) The Company shall indemnify and hold Customer harmless against any and all liabilities, claims, demands, expenses, or losses resulting for the negligent or intentional acts or omissions of the Company, its employees, officers, agents, directors or subcontractors; provided, however that the amount of such indemnification is limited to the price of the services which give rise to the claim for indemnification.
16. CHANGE ORDERS:
(a) Any changes in Company’s scope of services as set forth in Company’s scope of work set forth hereon shall be agreed in writing between the customer and company and shall be on only mutually agreed time and financial basis.
(b) In the event of an emergency affecting the safety of persons or property, the Company shall act in its own discretion, to prevent threatened damage, injury or loss. Within five (5) days after taking such action, the Company shall supply a detailed report to Customer which shall specify the emergency, the action taken, and such other information as the Company shall reasonably feel is necessary to fully explain the emergency. The Company shall invoice Customer, and Customer shall pay for all extra costs incurred by the company in the event of such emergency unless such emergency was caused by the gross negligence or willful misconduct of Company.
17. INDEPENDENT CONTRACTOR: Company shall perform its Services in accordance with the scope of work as approved by Customer. Customer shall have no right to exercise any control or direction over the employees or agents of the Company in connection with the services. Neither party shall have authority (i) to employ any person as agent or employee for or on behalf of the other party or (ii) to make any representations or assume or create any obligation, expressed or implied, on behalf the other party.
18. ENTIRE AGREEMENT: It is hereby further understood and agreed that the express terms of Company’s scope of work and the Company’s Terms and Conditions constitute the entire Agreement between Customer and Company and there are no other agreements, representations, or understandings between Company and Customer relating to the scope of work or the Services to be performed by the Company in accordance therewith, and that all agreements, representations, and understandings of the parties with the respect to the Services to be performed by the Company are merged with and superseded the terms of the scope of work and these Terms and Conditions. No provisions of the Company’s scope of work or the Company’s Terms and Conditions may be waived, altered, or modified in any manner unless the same shall be set forth in writing and signed by duly authorized officer of Company. In the event that any purchase order, requisition, or provision, term or condition which is in addition to or inconsistent with any provisions herein, no inconsistent provision, terms, or conditions shall be deemed to have been tacitly accepted by the Company by reason of the Company’s commencement of Services pursuant to any such purchase order, requisition, or other authorization to proceed. The Company’s Terms and Conditions shall supersede any such purchase order, requisition, or other authorization to proceed.
20. GOVERNING LAW: It is expressly agreed and stipulated that this contract shall be deemed to have been made and to be performed in the State of Florida, and all questions concerning the validity, interpretation, or performance of any of its terms or provisions, or of any rights or obligations of the parties hereto shall be governed by and resolved in accordance with the laws of said State. The parties hereto agree that any suit, dispute or action brought pursuant to this agreement shall be brought exclusively in the Ninth Judicial Circuit Court of the County of Orange in the State of Florida.