The following document provides all terms and conditions governing the deliverables and services (here forth “Project”) provided by George T. Hall Company (GTH) to or for its client (Client).
RELATIONSHIP & RESPONSIBILITY OF PARTIES
Client is required to submit a complete set of specifications for the performance of the Project acceptable to GTH and consistent with this quotation.
TERMS & TERMINATION
This quotation becomes void after 30 days unless otherwise noted in the body of the quotation and may be withdrawn by GTH at any time prior to acceptance by Client. Total price does not include applicable sales tax, tariffs, or shipping charges, unless otherwise noted. Lead times listed are estimates only. GTH is not liable for delays caused by manufacturers, shortages of materials or equipment, shipping carriers, outside service labor, or other circumstances beyond the reasonable control of GTH (including without limitation changes to the scope of the Project, delays by Client in providing information to GTH, fires, natural disasters, pandemics, civil disturbances, acts of governmental authorities, or labor disputes). Fieldwork not included in the quotation will be subject to the rates and terms specified on the GTH Service Rate Schedule. Any exceptions must be stated and accepted in writing. Standby time is defined as the time during which the technician is available to work but is not working due to circumstances outside of the control of GTH, including weather conditions or by Client direction. Standby time will be billed at rates specified on the GTH Service Rate Schedule (including overtime if work is required outside normal business hours or the Field Technician’s daily work hours). In the event of cancellation, Client is responsible for payment of all materials ordered and labor for work in progress. Acceptance of this quotation shall be in the form of a Purchase Order or signed contract and shall not be modified without a written change order executed by both GTH and Client. Acceptance of this quotation acknowledges Client’s acceptance of these exclusive terms in their entirety, regardless of other contract documents and their implied terms. All custom orders must be accompanied by a written and signed Purchase Order before any work can begin and are non-cancellable and non-refundable for any reason.
If Client fails to comply with its obligations hereunder (including without limitation the full and timely payment to GTH), GTH may provide written notice of such default to Client and suspend further performance until such default is cured by Client. When such default is cured by Client, the amount to be paid for the Project will be equitably increased to account for GTH’s damages arising from such suspension (including without limitation demobilization and remobilization expenses and increased costs of performance) and the time for GTH to complete the Project will be equitably extended to account for such suspension. If Client fails to cure such default within 30 days of its receipt of such notice from GTH, GTH may terminate its agreement with Client by providing written notice thereof and recover from Client payment for all portions of the Project performed (in whole or in part) through the date of such termination, GTH’s demobilization expenses and other reasonable termination costs, the amount of expected overhead and profit GTH would have earned on the cancelled portions of the Project if not for Client’s default, and any collection costs incurred by GTH in obtaining payment due from Client.
CONDUCT OF WORK
During the term of the Project, GTH shall provide Client the services and deliverables as outlined in this quotation and the corresponding Purchase Order accepted by GTH. Client is to provide any reasonable Client-specific on-site requirements and provisions to GTH two weeks (14 days) prior to the commencement of field work. During the term of the Project, either Client or GTH may request changes to the scope of the Project. Such changes will be effective if the other party agrees to the change in writing or through its actions. If the agreed change results in greater or lesser cost or time for performance, GTH’s compensation and schedule for the Project will be adjusted accordingly.
This quotation does not include electrical or mechanical installation such as running conduit, pulling wire, or mounting hardware/ instrumentation, unless otherwise explicitly noted. Both GTH and Client assume that the industrial exemption applies to all services for the Project, and Client acknowledges that individuals not licensed as professional engineers or contractors may execute some or all of the Project in accordance with applicable law.
BILLING, TAX, & PAYMENT TERMS
The terms of this quotation are Net 30 days from the date of invoice unless otherwise noted. Interest and late charges shall accrue at 1.5% per month on any unpaid balances. Progress billings, if applicable, will be invoiced Net 7 days based on milestones specified in this quotation. Start-up assistance, commissioning, field work, warranty calls, and the like will be suspended if invoices are past due. Returns, exchanges and/or changed product shipments may be subject to a cancellation fee of 25%. GTH retains all lien rights and other remedies for the collection of amounts due for the Project.
Sales and use tax will be included in the sell price at the rate specified in the proposal unless the client has a valid reseller permit. Any change in shipping destination or tax rate will be billed as a change order.
To the fullest extent permitted by law, during the term of the Project and for a period of 18 months thereafter, both parties agree not to, directly or indirectly, solicit, recruit or employ any employee of either party without the prior written consent of the other.
INTELLECTUAL PROPERTY / WORK PRODUCT RIGHTS
GTH shall retain all rights, title and interest in the Project and its designs, and other intellectual property connected to its function, including but not limited to all drawings, specifications, and software prepared or customized by GTH. GTH also maintains all other copyrights, patents, and/or intellectual property rights, except the nonexclusive license granted to the Owner to install and use the Project per the terms of this quotation and the corresponding Purchase Order accepted by GTH and conditioned on Client’s payment of the agreed compensation to GTH. Client may not sell, sublicense, assign or transfer its license to the Project provided by GTH without the prior written consent of GTH, nor may Client reverse engineer or make derivative works from the Project or its designs or other GTH intellectual property.
LIMITATION OF LIABILITY AND INDEMNITY
Neither party will be liable to the other party for any special, indirect, consequential, or incidental damages of any kind, including, without limitation, any loss of profit, loss of use, or business interruption, based on any claim under this agreement or related to the Project, even if such party has been advised of the possibility of such damages. To the extent permitted by applicable law, in no event shall the total aggregate liability for damages hereunder of GTH or its employees or agents exceed the amount paid for the Project by Client, regardless of the theory of liability (including without limitation breach of contract or warranty, negligence or strict liability). To the fullest extent permitted by law, Client hereby agrees to indemnify, defend and hold GTH harmless from and against all loss, damage, cost, expense, or liability, including reasonable attorneys’ fees, (collectively called “Damages”) to the extent arising from the acts or omissions of Client, including without limitation Client’s obligations to maintain the health and safety of its premises and equipment, its employee practices (including with respect to the use of the Project) or arising from the conditions of the Client’s facilities or equipment.
EXCLUSIVE LIMITED WARRANTY
Components incorporated into the Project are warranted solely by the manufacturer to be free of material defects in materials and workmanship and are inspected prior to shipment in a reasonable effort to ensure that they comply with the manufacturer’s stated specifications. For other elements of the Project, for a period of one year, GTH warrants solely to Client that all services will be performed in a workmanlike manner consistent with current and generally recognized standards in the industry and that all deliverables will be provided in compliance in all material respects with the requirements established by this quotation. In no event will GTH be responsible for (a) any modifications to the Project made by anyone other than GTH; (b) damages caused by misuse, improper operation or improper or insufficient maintenance of the Project; (c) normal wear and tear; (d) any data loss or corruption or personal information data breach; or (e) any alleged defects in the Project that arise from GTH’s compliance with designs, specifications or other criteria or requirements provided by or through Client. Terms of the warranty are for a period of one (1) year from the date of shipment. Any Project component failing to meet these warranty requirements during the warranty period hereunder will be repaired or replaced, at GTH’s option, free of charge, provided the following conditions are met:
A. For components warranted solely by the manufacturer thereof, such manufacturer has agreed to repair or replace such component without cost to GTH or Client (exclusive of reasonable and customary warranty enforcement and processing assistance provided by GTH during the 1-year warranty period set forth above).
B. GTH must be notified of the nature of the defect within one (1) year of the original invoice date and promptly upon discovery of the defect.
C. Client receives advance authorization from GTH to return the defective unit.
D. The warranty unit is returned with freight charges prepaid to GTH’s corporate office in Anaheim, CA. Replacement units will be shipped freight allowed. Correction of the defects through repair or replacement to the extent required hereunder will constitute the fulfillment of GTH’s obligation and is Client’s sole and exclusive remedy in the event of a warranty obligation. Labor for warranty replacement, if required, will be billed at GTH’s current published service rates.
GTH MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND ANY OTHER WARRANTIES (INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE/AGAINST INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE) ARE EXPRESSLY DISCLAIMED BY GTH TO THE FULLEST EXTENT PERMITTED BY LAW.
GOVERNING LAW & VENUE
The agreement will be governed by and interpreted in accordance with the laws of the State of California and the United States of America, including the Federal Arbitration Act, 9 U.S.C. § 1, et seq. with respect to the parties’ agreement to arbitrate any dispute arising out of or related to Project, without regard to rules governing choice or conflict of laws. Client and GTH agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to their agreement.
In the event GTH and Client cannot resolve any claim or dispute between them arising out of or related to the Project or this quotation, such dispute shall be subject to arbitration in accordance with the Construction Arbitration Rules of the American Arbitration Association. Such arbitration proceedings will be held in Anaheim, California before a single arbitrator. The prevailing party (as determined by the arbitrator) will be entitled to recover from the other party all costs incurred in resolving the dispute, including reasonable attorneys’ and expert fees and the costs of arbitration. The arbitrator’s award shall be final and may be entered as a judgment in any court with jurisdiction.
These terms and conditions, along with the GTH quotation and the corresponding Client purchase order accepted by GTH hereunder, constitute the entire agreement between the parties with respect to the Project. These terms supersede all previous and contemporaneous agreements, proposals and representations, written or oral, concerning such matters. Any additional, conflicting, or inconsistent Client terms (whether set forth in a request for proposals, purchase order or acknowledgement or in any other document) are expressly rejected by GTH and are not a part of the agreement for the Project.
Neither Client nor GTH may assign its respective rights and obligations under their agreement without the written consent of the other party. However, GTH may subcontract or delegate its work obligations to other persons or entities but will nonetheless be responsible to Client for the performance of the work as required by this quotation. Both Client and GTH agree that there are no third-party beneficiaries to their agreement.
SAVINGS CLAUSE AND WAIVER
If any term of the proposal or these terms and conditions is found to be unenforceable, the remaining terms will remain in effect. The failure of either GTH or Client to exercise any rights under their agreement will not be deemed a waiver of such right except as agreed in writing or as otherwise set forth in these terms and conditions.