1. Acceptance. Sale of the products and services by the Company (the “Project”) is expressly conditioned upon the terms and conditions set forth herein. Any order for, or any statement of intent to purchase the Project or any direction to proceed to provide the Project, will constitute Purchaser’s assent to these Terms and Conditions (“Terms and Conditions”). If there is any inconsistency between these Terms and Conditions and the terms of the GFC Purchase Order, these Terms and Conditions shall prevail.
2. Entire Agreement. These Terms and Conditions, together with any other terms and conditions stated in the GFC Purchase Order, constitute the entire agreement between the parties hereto with respect to the subject matter hereof and supersede all prior agreements, representations, and understandings of the parties, written or oral. Any different or conflicting terms and conditions contained in Purchaser’s purchase order or any other document shall be inapplicable and without effect. No amendment or supplement of any provision of these Terms and Conditions shall be binding unless executed in writing by both parties to these Terms and Conditions. No provision of these Terms and Conditions shall be deemed to have been waived unless such waiver is executed in writing by the party waiving such provision. No waiver of any provision of these Terms and Conditions shall constitute a waiver of any other provision of these Terms and Conditions. No waiver of any breach or violation of any provision of these Terms and Conditions shall constitute a waiver of any subsequent breach of such provision.
3. Rejection; Delay. Purchaser’s rejection or refusal of the Project shall not invalidate the remainder of these Terms and Conditions and the terms and conditions of the GFC Purchase Order without the consent of the Company. The Company shall not be held responsible for delays or default in deliveries caused by strikes, labor difficulties, accidents, riots, civil unrest, war, fire, delay or defaults of common carriers, failure or curtailment in the Company’s usual sources of supply, governmental decrees or orders, damage or destruction of goods, mechanical failure of vehicles of the Company, weather, or any other cause beyond the Company’s control. If the Project is provided to Purchaser within thirty (30) days after the specified date in the GFC Purchase Order shall constitute compliance.
4. Transfer Taxes. All purchase prices are stated in U.S. Dollars and do not include any federal, state or local taxes. Purchaser shall promptly pay when due or reimburse the Company for any and all sales and use and other taxes, assessments, and other governmental charges arising out of the provision of the Project to Purchaser. Purchaser shall provide to the Company any appropriate resale exemption certificates.
5. Payment Terms. Purchaser agrees to make payments, without any setoff or deduction, on the terms stated in the GFC Purchase Order, including interest on any balance unpaid after the due date thereof at a rate of one and one-half percent (1-1/2%) per month or (if less) the maximum rate permitted by law. Purchaser shall pay all attorneys’ fees, court costs and all other costs incurred by Company in collecting past-due amounts, including interest on such amounts at the rate provided above. If the GFC Purchase Order provides for installment payments, such installment payments for the Project shall be accelerated and the purchase price shall be due and payable in full immediately upon Purchaser’s failure to comply with the terms of these Terms and Conditions, including but not limited to payment obligations.
6. Permits and Fees. Prior to the Company commencing the Project, Purchaser shall obtain and pay for all required work permits, building permits and licenses. Taxes, special assessments of all descriptions and charges required by public bodies and utilities will be paid for by Purchaser.
7. Right to Stop Work. If any payment under these Terms and Conditions is not made when due, the Company may suspend work on the job until such time as all payments have been made. Any failure to make payment is subject to all claims enforced against the property in accordance with applicable lien laws.
8. Clean-Up. The Company is responsible for removing debris and surplus material from the property, and leaving the property in a neat and orderly condition at the end of the Project.
9. Inspection. Prior to completion of the Project, Purchaser shall have the right to inspect the Project, and may request alterations as Purchaser deems necessary. Any requested alterations are subject to the Company’s approval and price adjustment for the Project. The Project shall be deemed accepted by Purchaser upon signature of Purchaser acknowledging completion or within fourteen (14) days from the last date the Company performs services for the Project, whichever is earlier.
10. Changes – Termination. The Company, at any time, may change the quotation stated in the GFC Purchase Order due to unforeseen circumstances, including without limitation, substrate failure, compromise of integrity/safety of any structure, and unfulfilled Purchaser responsibilities. The Company may, at any time, reschedule an application for the Project due to inclement weather conditions to preserve the quality of the product application. Purchaser acknowledges and agrees that any work performed in addition to the Project will be at an additional cost, and that any change orders or requested work will incur additional costs to be added to the Project price. Any such additional costs will be disclosed at the time of such change order or request for additional work. The parties agree that either may terminate the GFC Purchase Order and these Terms and Conditions (collectively, the “Agreement”) due to a material breach by Company or Purchaser of any of Agreement. If Purchaser terminates this Agreement prior to two weeks prior to the application of the product, the Company will refund Purchaser the security deposit. If Purchaser terminates this Agreement within two weeks of the application of the product, then the Company shall retain the security deposit. If Purchaser terminates this Agreement after the arrival of the Company to complete the Project, then the Company shall retain the security deposit and Purchaser shall pay the Company for any additional expenditures, commitments, liabilities, other costs and overhead expenses incurred with respect to the supply of goods and services, all as determined in accordance with good accounting practice by the Company’s accountant, and shall be in addition to any other damages the Company may have
11. Limitation of Liability. In no event shall the Company’s liability under any contract exceed the purchase price of the Project. THE COMPANY SHALL NOT HAVE ANY LIABILITY WHATSOEVER FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF ANTICIPATED PROFITS, DAMAGE TO PROPERTY, SET-UP TIME OR MANUFACTURING DELAYS) INCLUDING BUT NOT LIMITED TO ANY LIABILITY ARISING IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE. THE PRICE STATED FOR THE COMPANY’S PERFORMANCE UNDER THESE TERMS AND CONDITIONS IS A CONSIDERATION IN LIMITING COMPANY’S LIABILITY HEREUNDER. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THE TRANSACTIONS UNDER THESE TERMS AND CONDITIONS MAY BE BROUGHT BY PURCHASER MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. Notwithstanding any rule of law to the contrary, the damage limitations and exclusions contained in this Section 13 are to be considered independent of the limited remedies described in Section 11 and shall survive and be fully enforceable without regard to the Company’s breach of the express warranty, or the failure of any limited remedy, provided in Section 11.
12. Purchaser’s Responsibilities.
a. The Company will not move or remove any items from the garage or area to be coated. Purchaser shall ensure that all items removed from the garage prior to installation.
b. During the Project preparation process, it may be necessary to grind or sand the floor. This procedure may create considerable dust. It is the responsibility of Purchaser to ensure that any dust-sensitive items are isolated from the work area.
c. The Company will coat around the water softener unless Purchaser has the softener removed. The Company will not move or remove water softeners.
13. Disclosures to Purchaser.
a. Coatings will not adhere to substrate if extreme conditions exist.
b. Large appliances or other heavy items should never be dragged across the floor. Purchaser should use a dolly or hand truck to prevent damage to the coating.
c. In order to provide the highest quality coating, the Company must use materials that contain a high-odor content. These materials emit odors that may cause discomfort (however, they are not harmful). The Company makes every effort to minimize odors from entering the home. If Purchaser has any questions, please contact the Company.
d. The Company may use leaf blowers in the cleaning/drying process. It is possible that the blower may extinguish the gas water heater pilot light. This is not a dangerous situation. Purchaser should contact the Company immediately if Purchaser is unable to re-light the pilot, and the Company will send someone to re-light the pilot light.
e. Motorcycle kickstands can scratch the coating; Purchaser should use a kickstand pad.
f. If there is ever a need for a touch-up or repair, there may be a variation in the coating and chip colors after a repair is complete. The Company will make a reasonable attempt to blend the colors.
g. Purchaser should isolate any rusty metal from the floor coating to prevent staining.
14. Relationship of Parties. Contractor and Purchaser are independent contracting parties and nothing in these Terms and Conditions shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligations on behalf of or in the name of the other.
15. Miscellaneous. Due to events and matters that are often beyond contract of the Company, the Company cannot make quotations or accept orders which should necessitate the posting of a performance bond or monies providing for penalties for late delivery. These Terms and Conditions are made pursuant to the understanding that no such bond, or its equivalent, is or will be required. If such is required, then the Company has the right to terminate this agreement, and the Company shall have no liability to Purchaser, and the agreement between the Company and Purchaser shall be null and void.
16. Indemnification. Purchaser shall indemnify, save, and defend the Company, together with its members, managers, officers, directors, employees, servants, agents, affiliates, and assigns, harmless against all liability, claims, judgments, or loss of every kind (including reasonable attorney fees and costs), including without limitation, liability arising from the negligence of Purchaser, its members, managers, officers, directors, employees, servants, agents, and assigns for injury to persons in connection with the Company’s provision of the Project.
17. Controlling Law and Choice of Forum. These Terms and Conditions and the rights and obligations of the parties hereto shall be governed by and construed in accordance with the laws of the State of Nebraska without regard to conflict of laws principles. Each of the parties hereto submits and consents to the jurisdiction of the U.S. District Court for Nebraska or any state court located in Douglas County, Nebraska, in any action or proceeding arising out of or relating to these Terms and Conditions, agrees that all claims in respect of such action or proceeding may be heard and determined in such court, and waives any defense of inconvenient forum to the maintenance of any action or proceeding in such court. Each party also agrees not to bring any action or proceeding arising out of or relating to these Terms and Conditions in any other court. Each party expressly waives the right to a jury trial as to any issues arising out of or relating to these Terms and Conditions.
18. Assignment. These Terms and Conditions shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and permitted assigns. No party may assign these Terms and Conditions or its rights or obligations hereunder without the prior written consent of the other party hereto.
19. Severability; Remedies; Waiver. In the event that any one or more provisions contained herein will be 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. The remedies contained herein are cumulative and in addition to any other remedies at law or equity. A party’s failure to enforce, or waiver of a breach of, any provision contained herein will not constitute a waiver of any other breach or of such provision.
20. Accord and Satisfaction. No payment by Purchaser or receipt by the Company of a lesser amount than the amount due shall be deemed to be other than on account of the earliest amount charged to Purchaser, nor shall any endorsement or statement accompanying any payment be deemed to work as an accord and satisfaction, and the Company may accept such check or payment without prejudice to the Company’s rights to recover the balance of such amounts due or to pursue any other applicable remedy whether provided in these Terms and Conditions or otherwise.