Anfield Industrial Solutions, Inc.

General Terms & Conditions

(Revision 2022-01)

THE PROPOSAL ATTACHED HERETO IS EXPRESSLY CONDITIONED UPON THE FOLLOWING GENERAL TERMS AND CONDITIONS (THESE “GENERAL TERMS & CONDITIONS”). THESE GENERAL TERMS & CONDITIONS PROVIDE FOR TERMS THAT ARE COMMON TO THE FINAL AGREEMENT, INCLUDING THE PROPOSAL AND EACH SOW.

NOTE: THESE GENERAL TERMS & CONDITIONS INCLUDE YOUR AGREEMENT TO ARBITRATE MOST DISPUTES, WHICH AFFECTS YOUR RIGHTS. PLEASE SEE SECTION 12.2.

PAYMENT OF THE RESERVATION FEE CONSTITUTES YOUR IRREVOCABLE ACCEPTANCE TO THESE GENERAL TERMS & CONDITIONS.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND YOUR AFFILIATES TO THESE GENERAL TERMS & CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE GENERAL TERMS & CONDITIONS, YOU MUST NOT PAY THE RESERVATION FEE AND MAY NOT RECEIVE THE WORK.  IN THE EVENT OF A CONFLICT OR INCONSISTENCY BETWEEN ANY DOCUMENTS ENTERED INTO BY THE CLIENT OR CONTRACTOR, THESE GENERAL TERMS SHALL CONTROL, FOLLOWED BY THE SOW, THE PROPOSAL, AND THEN ALL OTHER DOCUMENTS.  CAPITALIZED TERMS USED AND NOT DEFINED IN THESE GENERAL TERMS AND CONDITIONS HAVE THE MEANINGS GIVEN TO SUCH TERMS IN THE PROPOSAL OR APPLICABLE SOW.

  1. Work; Parties; Project
    • 1.1 For the purposes of this Proposal and these General Terms and Conditions:
      • 1.1.1.  The term “Contractor” shall refer to the following entities, Anfield Industrial Solutions, Inc. (“A.I.S.” or “Anfield” or “Contractor” or “company” “our” or “we”)
      • 1.1.2.  The term “Client” (“Customer” or “you”) shall refer to the entity hiring or contracting the Contractor’s services and to whom the Proposal was submitted.
      • 1.1.3.  The term “Proposal” (this “Proposal”) shall refer to the Scope of Work (“SOW”), Additional Terms: Clarifications and Exclusions, Price & Payment Terms, Published Rate Sheet, and These General Terms and Conditions. The Proposal is to apply only to the project for which it was submitted (the “Project”). 
      • 1.1.4.  The Proposal and SOW set forth the work, services, labor, materials, and equipment to be provided by the Contractor to the Client (the “Work”). Notwithstanding anything else stated or implied in the Final Agreement, these General Terms & Conditions shall supersede, prevail, and govern over any contradicting terms set forth in the Final Agreement.
      • 1.1.5.  The term “Reservation Fee” shall refer to the non-refundable schedule, reservation, planning, and set-up fee.
    • 1.2.  The Contractor reserves the absolute and exclusive right to revise the Proposal prior to the final contractual agreement by and between the Contractor and Client. When Contractor has been awarded the Project, the then-current version of the Contractor’s Proposal will be the official Proposal applicable to the Final Agreement.
    • 1.3.  The Contractor’s Chief Executive Officer is the only Contractor representative authorized to change, add, delete, or waive any term in the Contractor’s Proposal and/or the Final Agreement. Any change, addition, deletion, or waiver by the Contractor of any term in the Proposal and/or the Final Agreement is effective only if made in writing and signed by the Contractor’s CEO.
  2. Contractor’s Obligations
    • 2.1.  The Proposal pricing is based on following the minimum standards required by either MSHA or OSHA for the applicable operation. However, if the Client’s safety policies require more stringent standards, the Contractor reserves the right to adjust the Proposal pricing for the impact of such standards.
    • 2.2.  PPE, tools, materials, or any other safety equipment required to meet certain criteria above and beyond MSHA or OSHA requirements are subject to be billed at cost plus fifteen percent (15%).
    • 2.3.  Any Work not specifically addressed in the Contractor’s Proposal as work to be performed by the Contractor is excluded from the Proposal and Final Agreement. Work not expressly identified within the Contractor proposal shall be completed under the T&M Rates at the time of the Proposal submittal. All excluded T&M work shall be agreed upon in writing, with authorized signatures by both Contractor and Client, prior to any excluded T&M work being performed.
  3. Contractor’s Clarifications
    • 3.1.  The Contractor is a non-union, merit-based, open shop Contractor, and the Proposal is submitted based on its status as a non-union Contractor. If the Contractor is required to become a signatory to or to abide by any type of labor agreement. In that case, the Contractor reserves the absolute and exclusive right to extend the contract schedule and increase the Contract Price and/or rates to compensate the Contractor for the impacts.
    • 3.2.  The Contractor has no responsibility to verify any engineering or drawings provided by others. The Client represents and warrants the adequacy and sufficiency of the plans for the Work.  The Contractor may justifiably and reasonably rely on the Client’s warranty that the plans are adequate and sufficient for the Work.
    • 3.3.  The Client may be exposed to or acquire Confidential Information which is proprietary or confidential to the Contractor or its affiliates or to third parties to whom the Contractor owes a duty of confidentiality. “Confidential Information” shall mean any non-public information of any form obtained by Client arising from Proposal; sales information; pricing and rates; means of performing the Work; and all patent, copyright, and trade secret rights with respect to any work product of Contractor developed or conceived by Contractor while performing the Work. Client shall hold the Confidential Information in strict confidence and not copy, reproduce, sell, assign, license, market, transfer, or otherwise dispose of, give, or disclose any Confidential Information to third parties or use any Confidential Information for any purpose whatsoever. Client shall advise each of Client’s employees who may be exposed to the Confidential Information of their obligations to keep such information confidential.  The obligations in this Section 3.3 shall survive termination and continue for so long as the applicable information constitutes Confidential Information.  Confidential Information shall not include information that: (a) is already known to Client without restriction on use or disclosure prior to receipt of such information from Contractor; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, Client; (c) is developed by Client independently of, and without reference to, any Confidential Information of Contractor; or (d) is received by Client from a third party who is not under any obligation to the Contractor to maintain the confidentiality of such information.  Each party acknowledges that a breach by Client of Section 3.3 will cause Contractor irreparable damages, for which an award of damages would not be adequate compensation, and agrees that, in the event of such breach or threatened breach, Contractor will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which Contractor may be entitled at law or in equity.
  4. Changes
    • 4.1.  In the event Contractor encounters conditions at the site that materially differ from the information supplied by Client, Contractor shall be entitled to both an addition to the Contract Price, according to the T&M Rates, and an extension of the schedule equal to the time necessary to perform the Work considering the differing conditions.
  5. Schedule
    • 5.1.  NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE CONTRACTOR SHALL NOT BE LIABLE TO THE CLIENT FOR ANY DAMAGES, LOSSES, CLAIMS, OR EXPENSES ARISING OUT OF OR ASSOCIATED WITH ANY DELAY OR HINDRANCE TO THE WORK, REGARDLESS OF THE SOURCE OF THE DELAY OR HINDRANCE EVEN IF SUCH DELAY OR HINDRANCE RESULTS FROM, ARISES OUT OF, OR IS DUE, IN WHOLE OR IN PART, TO THE NEGLIGENCE, BREACH OF CONTRACT, OR OTHER FAULT OF THE
    • 5.2.  “Unavoidable Delays” shall include, but not be limited to, war, insurrection, civil commotion, strikes, slowdowns, lockouts, riots, floods, earthquakes, fires, casualties, weather delays, acts of God, acts of a public enemy or terrorist, epidemics, freight embargoes or restrictions, lack of transportation, governmental moratoriums and/or shutdowns, weather, or acts or omissions by Client that interfere with Contractor’s duties. If the Contractor is delayed at any time in the progress of the Work by changes ordered in the Work, Unavoidable Delays, unusual delays in deliveries, unavoidable casualties, or other causes beyond the Contractor’s control, including Client-caused delays and weather-related events, the time allotted for completion of the Work and the Contract Price shall both be subject to an equitable adjustment.
    • 5.3. If the Work performed by Contractor personnel is postponed, suspended, and/or delayed by Client, Client’s other Contractors, Client’s agents, a government authority, any reason of force majeure, any Unavoidable Delays, or any other reason not the fault of Contractor, Contractor may withdraw personnel and return to the Work when needed and available. However, the Contractor may elect, in its absolute discretion, to pay stand-by costs for a reasonable time rather than withdrawing personnel, in which event all charges for stand-by time and all additional costs (including, but not limited to, travel time and expenses) will be an additional charge to the Client.
    • 5.4. Project scheduling and the time for the Contractor to perform the Work shall be contingent upon receipt of the Project award from the Client, a notice to proceed from the Client, all permits the Client is to supply, and the delivery of required equipment to be supplied by Client. The schedule submitted in the Proposal shall be adjusted according to the date of award of the Project.
    • 5.5.  The Contractor has not accounted for any delays due to any type of weather, including winds, heavy rains, ice, lightning, storms or snow, or transport, whether by truck, air or train, traffic, or otherwise. The Contractor reserves the right to charge time and material costs for all such impacts.
    • 5.6.  If the Client postpones, delays, or alters an awarded project schedule in a manner that poses adverse conditions with possible financial impact to the Contractor, then the Contractor shall reserve the right to alter its proposal in a fair and equitable manner that best alleviates all financial impact to the Contractor.
    • 5.7.  Delays and impact factors will be calculated per the Mechanical Contractors of America, Inc. percentage current factors.
  6. Warranties
    • 6.1.  The Contractor warrants all Work will be of the ordinary industry standard for good and workmanlike quality for twelve (12) months from the time of installation. All manufacturer and material supplier warranties shall pass through from the Contractor to the Client. In no event will Contractor supply any additional warranty over the manufacturer or supplier’s warranty. All of the Contractor’s warranties are for labor only.
    • 6.2.  For a period of thirty (30) days following the Client’s receipt of any Work, the Contractor will, without charge, correct any nonconformity, defect, or malfunction in any Work within thirty (30) days of written notice from the Client after their delivery provided such written notice specifically identifies each deficiency to be corrected. If the Contractor determines that it is unable to correct the Work, the Contractor’s sole obligation and Client’s exclusive remedy, at the Contractor’s sole cost and expense, is to do one of the following: (a) replace the affected Work; (b) modify the affected Work so that it Is conforming to the warranty in Section 6.1, or (c) refund Client all fees paid for the non-conforming Work. THIS SECTION SETS FORTH THE CLIENT’S SOLE REMEDY FOR ANY BREACH OF SECTION 6.1.
    • 6.3.  ONCE CLIENT ACCEPTS, TAKES CONTROL OF, OR STARTS OPERATING ANY EQUIPMENT INSTALLED BY CONTRACTOR, CLIENT SHALL BE DEEMED TO HAVE INSPECTED THE EQUIPMENT AND ACCEPTED ALL SUCH WORK AND EQUIPMENT “AS IS.” THE WARRANTIES EXPRESSLY SET FORTH IN THESE GENERAL TERMS AND CONDITIONS ARE THE SOLE AND EXCLUSIVE WARRANTIES MADE BY CONTRACTOR WITH RESPECT TO THE WORK, THE PROJECT, OR THE FINAL AGREEMENT AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY EXPRESSLY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE CONTRACTOR DOES NOT WARRANT OR GIVE ANY PROCESS GUARANTEES OF ANY KIND, EXPRESSED AND/OR IMPLIED, OTHER THAN AS STATED IN 6.1 ABOVE; THE CONTRACTOR HEREBY DISCLAIMS ALL PROCESS GUARANTEES OR WARRANTIES OF EVERY KIND RELATED TO THE WORK OTHER THAN AS STATED IN 6.1 ABOVE. THE CONTRACTOR SHALL HAVE NO LIABILITY FOR ACTS, ERRORS, OMISSIONS, AND/OR DELAYS OF THE CLIENT AND/OR ANY OF ITS EMPLOYEES, INDEPENDENT CONTRACTORS, AND/OR AGENTS. IF THE CONTRACTOR INSTALLS ANY TYPE OF STRUCTURE OR EQUIPMENT FOR THE PURPOSES OF PERFORMING THE WORK AND THE CLIENT OR ANYONE ELSE ON THE CLIENT’S PROPERTY ELECTS TO USE OR OPERATE SUCH STRUCTURE OR EQUIPMENT, THE CLIENT ACCEPTS ALL RISK ASSOCIATED THEREWITH AND AGREES THAT THE CONTRACTOR MAKES NO REPRESENTATION THAT THE STRUCTURE OR EQUIPMENT IS SAFE TO USE IN ANY MANNER AND CONTRACTOR SHALL HAVE NO LIABILITY RELATED TO SUCH USE BY CLIENT OR OTHERS USE.

SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO THE CLIENT. IN SUCH EVENT, THE CONTRACTOR’S WARRANTIES AND CONDITIONS WITH RESPECT TO THE WORK WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.

  1. Payment & Invoicing
    • 7.1.  As compensation for the Work, Client shall pay to Contractor in US dollars the greater of (i) the cost of the Work, plus the Contractor’s fee and overhead, as more specifically set forth in the Proposal, the SOW and these General Terms & Conditions; (ii) the lump-sum Contract Price set forth in the SOW; or (iii) the lump-sum price set forth in the Proposal, as applicable (“Contract Price”).
    • 7.2.  The Contractor will require payment of a minimum of twenty-five percent (25%) of the total Contract Price as a non-refundable scheduled reservation, planning, and set-up fee net fifteen (15) days upon being awarded the Project and one hundred percent (100%) of all charges for materials upon delivery of such materials to the Project site.
    • 7.3.  No offsets or retention of any kind shall be withheld on payments due and owing to the Contractor.
    • 7.4.  The Contractor will invoice for Work performed on a weekly basis, and the Client shall sign a verification form for (i) the time and material charges or (ii) the percentage of Work completion. Client shall pay Contractor within thirty (30) calendar days after receipt of each invoice.
    • 7.5.  Overdue invoices shall accrue interest at a rate of ten percent (10.0%) per month or the maximum rate allowed by law, whichever is less. The Client is responsible for paying the Contractor all legal fees and expenses the Contractor incurs in any effort to collect overdue invoices.
    • 7.6.  Unless the Contractor refuses to perform the Work or to correct a legitimate defect in the Work after receipt of written notification in accordance with These General Terms & Conditions and Conditions, the Client cannot withhold payment from or delay making payment to the Contractor.
    • 7.7.  If the Contractor is to work under conditions that involve a labor dispute such as, but not limited to, pickets. In that case, the Client shall pay the Contractor a twenty percent (20%) premium on labor plus legal, security, and special transportation costs.
    • 7.8.  The Contractor reserves the right to charge additional mobilization and per diem, if lodging and meals exceed US GSA rates, if there are seasonal price increases if there is a shortage of reasonable lodging options, or for other causes beyond the Contractor’s control.
    • 7.9.  Projects with less than two (2) weeks’ notice for mobilization are subject to additional emergency mobilization/demobilization costs.
    • 7.10. Standard hourly rates apply to 12 hours per day per employee.
    • 7.11.  All hours worked over 12 hours in a single shift will incur a 37.5% premium per hour per employee.
    • 7.12.  All hours worked on holidays and emergency callouts will incur a 25.0% premium per hour per employee.
      • 7.12.1.  New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Day After Thanksgiving, Christmas Eve, Christmas Day, and Day After Christmas are recognized holidays.
    • 7.13.  If the Project is more than twenty-five (25) miles from the nearest suitable employee accommodations and services, a travel charge will apply per labor rate and will be charged for every half (½) hour increment.
    • 7.14.  The Contractor must have an approved Contractor supervisor on-site to direct Contractor employees. If the Client is to supply supervision, then THE CLIENT MUST FULLY INDEMNIFY AND HOLD HARMLESS THE CONTRACTOR.
    • 7.15.  Although hours, materials, and third-party billings may be summarized in the field, the Contractor reserves the right to perform a final check of all billings in the office and revise such billings to correct any errors such as, but not limited to, hours, rates, and/or cost.
    • 7.16.  The fees and expenses due to Contractor as set forth in the Proposal and Final Agreement are exclusive of all sales, use, withholding, excise, value-added, ad valorem taxes or duties incurred by Client or imposed on Contractor in the performance of the Work, the Project or otherwise due as a result of the Final Agreement. This section will not apply to taxes based solely on the Contractor’s income.
  2. Insurance
    • 8.1.  The Contractor shall provide one million USD ($1,000,000) general liability insurance per the Contractor’s standard policy and an Excess Liability Umbrella of five million USD ($5,000,000)
    • 8.2.  The Client shall obtain and maintain builders risk insurance upon the entire Project for the full cost of replacement during the Project, ensuring the interests of the Client, the Contractor, and all tiers of the Contractor’s subcontractors. This insurance shall insure against typical builder’s risk perils, including fire and extended coverages for risks of direct physical loss or damage and only for covered perils during construction, including theft, vandalism, malicious mischief, transit, collapse, false-work, temporary buildings, debris removal, wind, flood, earthquake, testing, and resulting damage from defective design, workmanship, or materials.
    • 8.3.  The Client will be responsible for any such builders’ risk insurance deductible(s) as would be applied under such policy terms if no deductible or self-insurance is applied to such a loss by the Project’s builders’ risk insurer(s).
  3. Suspension & Termination
    • 9.1.  The Final Agreement shall commence on the date set forth in the Proposal award and shall continue in full force and effect until terminated as set forth herein.
    • 9.2.  Either party may terminate the Final Agreement if the other party does not cure its material breach of the Final Agreement within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this subsection will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period.
    • 9.3.  Either party may terminate the Final Agreement following completion of the Project and payment in full of the Contract Price by the Client.
    • 9.4.  The Client may terminate the Final Agreement or reschedule performance of the Work for convenience if, and only if, the Contractor is paid for all Work performed up to the date of termination.
    • 9.5.  If Client exercises its right to terminate the Final Agreement or reschedules the performance of the Work under Section 9.4 (the “Convenience Termination”). In that case, the Client shall pay to the Contractor an amount equal to 115% of the unpaid amount of the Contract Price for the Work (the “Termination Liquidated Damages”). The parties intend that the Termination Liquidated Damages constitute compensation and not a penalty. The parties acknowledge and agree that the Contractor’s harm caused by a Convenience Termination would be impossible or very difficult to accurately estimate at the time of the contract and that the Termination Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from a Convenience Termination. The Client’s payment of the Termination Liquidated Damages is the Client’s sole liability and entire obligation and the Contractor’s exclusive remedy for any Convenience Termination.
    • 9.6.  Client’s obligation to make timely payments on amounts due as set forth herein is a material term. Should Client fail to timely pay Contractor as set forth herein, Contractor may, in addition to any other remedies herein or at law, after two (2) days’ notice, stop or suspend its Work until payment for all outstanding sums is received. In the event of stoppage or suspension of Work due to Client’s nonpayment, Contractor shall be entitled to an extension of time and reimbursement for any demobilization, remobilization, and/or standby costs.
    • 9.7.  Termination or expiration of the Final Agreement or any Project will not affect the provisions regarding Client’s treatment of Confidential Information, provisions relating to the payments of amounts due, indemnification provisions, provisions limiting or disclaiming Contractor’s liability, or any other terms which by their nature should survive, which provisions will survive such termination.
  4. Limitation of Liability
    • 10.1.  UNDER NO CIRCUMSTANCES WILL THE CONTRACTOR, ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OR OTHER THIRD-PARTY PARTNERS (“CONTRACTOR PARTIES”) BE LIABLE TO YOU OR ANY OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE WORK, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR BUSINESS INTERRUPTION EVEN IF CONTRACTOR IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING OR SUCH DAMAGES WERE FORESEEABLE. CONTRACTOR PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE AMOUNT PAID TO CONTRACTOR FOR THE WORK.
    • 10.2.  SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY. IN SUCH STATES OR JURISDICTIONS, THE CONTRACTOR PARTIES’ LIABILITY TO CLIENT SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.

EACH PROVISION OF THESE GENERAL TERMS & CONDITIONS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY CONTRACTOR TO THE CLIENT AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE GENERAL TERMS & CONDITIONS. SUCH PROVISIONS AND SECTIONS (INCLUDING, WITHOUT LIMITATION, SECTION 6.3, SECTION 7.15, AND THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THE FINAL AGREEMENT.

  1. Indemnity
    • 11.1.  TO THE FULLEST EXTENT PERMITTED BY LAW, CLIENT AGREES TO DEFEND, HOLD HARMLESS AND INDEMNIFY CONTRACTOR, AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, AND EMPLOYEES, (THE “CONTRACTOR INDEMNITEES”) AGAINST ALL LIABILITY, INCLUDING COSTS, EXPENSES, CLAIMS, LIENS, CITATIONS, PENALTIES, FINES, ATTORNEY’S FEES, LOSSES, AND DAMAGES FOR WHICH A CONTRACTOR INDEMNITEE MAY AT ANY TIME BECOME LIABLE AS A RESULT OF OR ARISING OUT OF THE PROJECT IDENTIFIED IN THE PROPOSAL AND RELATED TO BODILY INJURY, SICKNESS, DEATH, OR PROPERTY DAMAGE, BUT ONLY TO THE EXTENT SUCH BODILY INJURY, SICKNESS, DEATH, OR PROPERTY DAMAGE IS CAUSED BY THE NEGLIGENT ACT OR OMISSION OR FAULT OF CLIENT, EXCEPT TO THE EXTENT SET FORTH HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW.
    • 11.2.  TO THE FULLEST EXTENT PERMITTED BY LAW, CONTRACTOR AGREES TO DEFEND, HOLD HARMLESS AND INDEMNIFY CLIENT, AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, AND EMPLOYEES, (THE “CLIENT INDEMNITEES”) AGAINST ALL LIABILITY, INCLUDING COSTS, EXPENSES, CLAIMS, LIENS, CITATIONS, PENALTIES, FINES, ATTORNEY’S FEES, LOSSES, AND DAMAGES FOR WHICH A CLIENT INDEMNITEE MAY AT ANY TIME BECOME LIABLE AS A RESULT OF OR ARISING OUT OF CONTRACTOR’S PERFORMANCE OF THE WORK AND RELATED TO BODILY INJURY, SICKNESS, DEATH, OR PROPERTY DAMAGE, BUT ONLY TO THE EXTENT SUCH BODILY INJURY, SICKNESS, DEATH, OR PROPERTY DAMAGE IS CAUSED BY THE GROSSLY NEGLIGENT ACT OR OMISSION OR WILLFUL MISCONDUCT OF CONTRACTOR.
    • 11.3.  In no event shall the Contractor be obligated to indemnify the Client Indemnitees for any damage to the extent that it is caused by, arising out of, is based upon, or resulting from any defects in plans, designs, or specifications; any concealed or differing conditions at the Project site; any equipment provided by Client; any prior defects, either known or discovered, during project execution in the existing equipment, components and associated hardware accessed pursuant to Work performed during the Project; any information prepared, approved, or used by the Client, architect, or engineer; or any negligence of the Client, architect, or engineer in the rendition or conduct of professional duties called for or arising out of the construction documents.
    • 11.4.  The party seeking indemnification hereunder will promptly notify the indemnifying party in writing of a claim for which it seeks indemnification hereunder and cooperates with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party will immediately take control of the defense and investigation of the claim. It will employ counsel of its choice to handle and defend the same at the indemnifying party’s sole cost and expense. The indemnifying party will not settle any claim hereunder in a manner that adversely affects the rights of the indemnified party without the indemnified party’s prior written consent, which will not be unreasonably withheld or delayed. The indemnified party’s failure to perform any obligations under this Section 11.4 will not relieve the indemnifying party of its obligations under this Section 11 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.
  2. General Provisions
    • 12.1.  These General Terms & Conditions and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Georgia, without regard to its conflicts of laws rules.
    • 12.2.  Any dispute, controversy, or claim arising out of, in connection with, or relating to these General Terms & Conditions, the breach or alleged breach of These General Terms & Conditions, or the termination, enforcement, interpretation, or validity of These General Terms & Conditions, including extra-contractual claims and any determination of the scope or applicability of this provision to arbitrate, shall, upon the request of Contractor, be submitted to, and settled by, arbitration in the City of Atlanta, State of Georgia, before one (1) arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures, and the provisions of the Georgia Arbitration Code (O.C.G.A. Section 9-9-1 et seq.), as amended from time to time, shall apply to all such proceedings; provided, however, that arbitration shall not apply to claims for injunctive relief.  Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in the highest court of the forum, state or federal, having jurisdiction as provided in paragraph 12.3.  This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
    • 12.3.  The parties agree that any appropriate state court sitting in Fulton County, Georgia, or any Federal Court sitting in the Northern District of Georgia (Atlanta Division) (collectively, the “Permitted Courts”) shall have exclusive jurisdiction of any dispute, case, or controversy in any way related to, arising under, or in connection with, this Agreement (to the extent that such dispute, case, or controversy is not subject to paragraph 12.2), including extra-contractual claims, and shall be a proper forum in which to adjudicate such dispute, case, or controversy, and each party irrevocably: (a) consents to the jurisdiction of the Permitted Courts in such actions, (b) agrees not to plead or claim that such litigation brought in the Permitted Courts has been brought in an inconvenient forum, and (c) waives the right to object, with respect to such suit, action, or proceeding, that such court does not have jurisdiction over such party. In any suit, arbitration, mediation, or other proceeding to enforce any right or remedy under these General Terms & Conditions or to interpret any provision of these General Terms & Conditions, the prevailing party will be entitled to recover its costs, including reasonable attorneys’ fees, and all costs and fees incurred on appeal or in a bankruptcy or similar action.
    • 12.4.  The Proposal and all bids, repair procedures, rates, pricing, and reports are proprietary and remain the property of the Contractor and cannot be shared without the explicit written consent of the Contractor’s CEO.
    • 12.5.  During the term of the Final Agreement, and for a period of two (2) years following the expiration or termination of the Final Agreement, the Client shall not, without the prior written consent of the Contractor, directly or indirectly solicit or hire any employee or independent contractor of Contractor with whom it was introduced through the relationship established by the Final Agreement. if the Client breaches or otherwise violates this Section 12.4 (each a “Non-Solicit Breach”). In that case, the Client shall be required to pay Contractor an amount equal to one hundred percent (100%) of the annualized salary for each affected employee or independent contractor (“Non-Solicit Liquidated Damages”). The parties intend that the Non-Solicit Liquidated Damages constitute compensation and not a penalty. The parties acknowledge and agree that the Contractor’s harm caused by a Non-Solicit Breach would be impossible or very difficult to accurately estimate at the time of the contract and that the Non-Solicit Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from a Non-Solicit Breach. The Client’s payment of the Non-Solicit Liquidated Damages is the Client’s sole liability and entire obligation and the Contractor’s exclusive remedy for any Non-Solicit Breach.
    • 12.6.  If the Contractor’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees. In that case, the Contractor shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay. The Contractor’s obligation to perform will be extended by the same number of days as the Client’s contingent action is delayed.
    • 12.7.  Notwithstanding the content of any Client purchase order or any other document or record generated by Client (other than an executed Change Order), whether in writing or electronic, relating to the subject matter of the Final Agreement, the terms of this Proposal will govern, and any conflicting, inconsistent, or additional terms contained in such documents will be null and void.
    • 12.8.  All communications required or otherwise provided under the Final Agreement will be in writing and will be deemed given when delivered (a) by hand, (b) by registered or certified mail, postage prepaid, return receipt requested; or (c) by a nationally recognized overnight courier service; to the address set forth for the applicable party on the first page of this Agreement, as may be amended by the party by written notice to the other party in accordance with this Section 12.7.
    • 12.9.  Neither party may assign, transfer or delegate any or all of its rights or obligations under the Final Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed, provided that upon prior written notice to the other party, either party may assign the Final Agreement, in whole, to a successor of all or substantially all of the assets of that party through merger, reorganization, consolidation or acquisition. If a party makes any attempted assignment, transfer, or other conveyance in violation of the foregoing, the attempted assignment, transfer, or other conveyance will be null and void.
    • 12.10.  For purposes of the Final Agreement, (a) the words “include,” “includes,” and “including” will be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to the Final Agreement as a whole. Should any provision of the Final Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same may not apply a presumption that the terms of the Final Agreement will be more strictly construed against one party than against another.
    • 12.11.  In case any one or more of the provisions of the Final Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein will not in any way be affected or impaired thereby.
    • 12.12.  This Final Agreement, including these General Terms & Conditions, the Proposal, and SOW attached hereto, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto.
    • 12.13.  The Final Agreement may only be amended, modified, or supplemented by a written agreement signed by each party hereto. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving.
    • 12.14.  The Final Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and, except as expressly set forth in Section 11 (Indemnity), nothing herein, expressed, or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of the Final Agreement.
    • 12.15.  Nothing in the Final Agreement will constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute one party as the agent of the other for any purpose whatsoever. Neither party will have the authority or power to bind the other or to contract in the name of or create a liability against the other in any way or for any purpose.