Heating, Air Conditioning, Refrigeration

Mechanical · Electrical · Refrigeration

(616) 458-1544

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Contract Terms and Conditions

1-1-2013

Applicable terms.These Terms and Conditions apply to all transactions and related dealings between Owner and Seaman’s Air Conditioning & Refrigeration, Inc. ("Seaman's"). No additional or contrary terms, whether contained in an order, acknowledgment, letter, email, or other document from Owner or at Owner’s direction, shall be binding upon Seaman’s unless agreed to in a writing signed by an authorized officer of Seaman’s, and Seaman’s expressly rejects all such additional or contrary terms as may be contained in Owner’s documents. Seaman’s performance is conditioned on Owner’s unmodified consent exclusively to these Terms and Conditions. OWNER’S ACCEPTANCE OF ANY TENDER OF PERFORMANCE CONSTITUTES ACCEPTANCE OF ALL OF THESE TERMS AND CONDITIONS.Seaman’s shall have the right to correct any errors, whether clerical or mathematical, which are contained in this Agreement or on any term sheet or invoice.

Price and Payment.The terms, unless otherwise stated, with approved credit, are 50% down with the remaining 50% due through progress billing. All prices are those indicated on the front of the Proposal or a separate term sheet incorporated by reference. Seaman’s reserves the right at any time to demand payment in advance of performance. Tender of performance made after 30 days from the date of the proposal shall be subject to escalation in prices. Prices are subject to change at any time without notice. Prices do not include shipping or handling unless stated. Payment is due and payable on progress billings 30 calendar days from the date of each invoice. Seaman’s may refuse to perform where Owner is in default under this Agreement or any other agreement between the parties. Any payments not timely received by Seaman’s will accrue interest at a rate of 1 ½% per month, unless not permitted by law, in which case the interest charge shall be the highest rate permitted by law. Seaman’s retains title to all equipment until the Agreement is paid in full. Unless otherwise stated, the price does not include roof hatches, roof guards or rails, or level work surfaces required by code.

Performance. Delivery and/or performance dates are estimates only. Seaman’s is not responsible for any delays of any kind.

Termination.Seaman’s may cancel this Agreement without advance notice in the event of Owner’s breach, for failure to give adequate assurances of future performance after Seaman’s request for such assurances, or for any other reason in Seaman’s sole discretion. If Owner terminates this Agreement, it shall only do so on 30 days advanced written notice, and Owner will remain liable to Seaman’s for all costs, commitments and liabilities incurred by Seaman’s while fulfilling its obligations under this Agreement, including overhead allocated by Seaman’s to such costs and Seaman’s anticipated profit from this Agreement. If this Agreement is placed in the hands of an attorney for collection of any amounts due, Owner shall pay all of Seaman’s actual attorney’s fees and costs of collection.

Exclusive Warranty. Seaman’s warrants that its work shall be free from defects in labor or material for a period of one (1) year from the last date of performance. This warranty excludes misuse, abuse, and ordinary wear and tear. This is Seaman’s sole and exclusive warranty, and Owner waives all others. Seaman’s makes no warranty, express or implied, concerning any equipment not manufactured by Seaman’s. With regard to equipment not manufactured by Seaman’s, Owner’s sole and exclusive warranty accompanying the equipment is the warranty of the manufacturer of the equipment, and to the extent permitted by the manufacturer, Seaman’s agrees to transfer the manufacturer’s warranty to Owner. Owner acknowledges that the manufacturer’s warranty is sufficient and that it will not hold Seaman’s responsible in any respect for any defect in the equipment and it will accept the manufacturer’s warranty as its sole and exclusive warranty. SEAMAN’S EXPRESSLY AND UNCONDITIONALLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, OR WARRANTIES BASED ON ORAL REPRESENTATIONS FROM SEAMAN’S PERSONNEL OR AGENTS, AFFIRMATIONS, MODELS, DRAWINGS, SAMPLES, PROMOTIONAL LITERATURE WHETHER IN PRINT, ON THE INTERNET OR IN ANY OTHER FORMAT OR MEDIA.

Limitation of Liability. SEAMAN’S MAXIMUM CUMULATIVE LIABILITY TO OWNER SHALL NOT EXCEED THE VALUE OF THE WORK CLAIMED DEFECTIVE. IN NO EVENT SHALL SEAMAN’S BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR LOST GOODWILL, RELATING TO THE WORK PROVIDED HERUNDER, THEIR INSTALLATION OR USE, WHETHER IN CONTRACT, TORT PURSUANT TO STATUTE OR OTHERWISE, EVEN IF SEAMAN’S HAS BEEN ADVISED OF THE POSSIBILTY OF SUCH DAMAGES.

No Design or other services provided. Unless otherwise stated, Owner does not hire Seaman’s to perform any design services or for the production of any drawing or other media relative to the work performed pursuant to this Agreement. To the extent that Seaman’s offers any advice or produces any drawings or other media, Seaman’s does so as a courtesy to the Owner and Owner agrees that it will not rely on such advice, drawing or other media and Seaman’s shall not be liable for any matter arising from such advice, drawings or other media.

Disputes. All disputes of any type or kind, shall be decided by Arbitration and governed by the Construction Industry Rules of the American Arbitration Association existing at the time the claim or demand arose. The award of the arbitrator shall be final and binding, and shall be enforceable in a Court of competent jurisdiction. The arbitration shall take place within thirty (30) miles of Seaman’s place of business, unless otherwise agreed in writing. The arbitrator shall specifically enforce and may not modify the terms of this agreement, except the interest provision. The Arbitrator’s sole power shall be limited to the enforcement of the terms of this Agreement. Unless agreed to between the parties, there shall be no discovery in the arbitration other than document exchange permitted under the American Arbitration Association Rules. The Panel shall consist of a single arbitrator who shall be a currently practicing attorney with no less that fifteen years’ experience in commercial and commercial litigation matters with an AV Martindale Hubbel rating. The Arbitrator shall provide the parties with a full, reasoned opinion outlining both factual as well as legal issues. The award may not exceed the bounds of authority in this paragraph and shall be consistent with enforcement of this Agreement.

Miscellaneous. Owner must provide free access for all material deliveries and labor. Seaman’s is not responsible for any issues associated with mold and/or other indoor air quality issues, and Owner waives all said claims and covenants not to sue. Seaman’s is not responsible for any formicary corrosion in the equipment caused by volatile organic compounds. Seaman’s is not responsible for any concrete, asphalt or other damage caused by the concentrated loads from cranes or lifts. Seaman’s and Owner mutually waive all subrogation rights. Owner shall not assign any rights under this Agreement without the prior written consent of Seaman’s. Failure to exercise any rights under this Agreement shall not constitute a waiver and a waiver on one occasion will not constitute a waiver of the same item on any subsequent occasion. No amendment to this Agreement shall be effective unless it is in writing and signed by authorized representatives of both parties. Paragraph headings are for reference only and are of no legal force or effect. All notices shall be provided to the addresses set forth in this Agreement and if none is provided, to the party’s resident agent in the state of incorporation or organization. This Agreement shall be governed by the laws of the State of Michigan without regard to any conflicts of law principles. Wherever possible, all terms shall be interpreted consistently. In the event of a conflict with regard to price, payment terms or delivery, the typed provisions shall control over the printed provisions on this side. For any other conflict, these Terms and Conditions shall control. No usage in trade shall create a conflict with the terms of this Agreement. Seaman’s reserves the right to correct any typographical errors anywhere in this Agreement. A facsimile signature or a legally valid electronic substitute for a signature shall bind Owner. If any provisions are determined by an arbitration panel to be unenforceable, the remainder of the Agreement shall remain in full force and effect.

Entire Agreement. This is the complete and exclusive statement of the Terms and Conditions relating to the subject matter of this Agreement and all negotiations and representations, if any, made prior to the execution of this Agreement are merged into this Agreement. Seaman’s shall not be bound by any agent’s or employee’s representations, promises, or inducements not set forth in this writing.