TERMS AND CONDITIONS OF SERVICES
The term “Company” as used in this Terms and Conditions of Services (the “Terms and Conditions”) shall mean the entity purchasing the repairs, materials, equipment and/or services as described in the Service Order (referred to herein as the “Services”). The term “Service Provider” as used in this document shall mean RUM ROAD REPAIRS, LLC d/b/a CERTIFIED BOOM REPAIR SERVICE. Collectively Company and Service Provider are referred to as the “Parties” and individually as
“Party”. Any purchase order or other document for the Services issued by Company are deemed rejected by Service Provider and shall operate solely and exclusively as an acceptance of these Terms and Conditions to the exclusion of any contrary terms
and conditions contained in Company’s purchase order or other document.
1. Entire Agreement: The Service Order embodies the entire agreement
between the Parties. The Parties shall not be bound by nor liable for any statement,
representation, promise or understanding not set forth herein. Nothing contained in proposals, correspondence, discussions or negotiations prior to the date of the Service Order shall alter or amend the terms and conditions of the Service Order unless expressly incorporated herein. No changes, amendments, substitutions or modifications of any of the terms and conditions hereof shall be valid unless and until reduced to writing and signed by both Parties in accordance with Clause 2 (Changes) of the Service Order. Each Party acknowledges that it has had the opportunity to consult with legal counsel of its choice regarding the Service Order and enters into the Service Order voluntarily and with full understanding of these Terms and Conditions.
2. Changes: The Parties, through their respective representatives, may at any
time make, in writing, changes, including but not limited to changes in any one or more of the following: (1) Drawings and/or specifications; (2) Additions to or deletions from the Services ordered; (3) Schedule for performance of the Services; (4) Methods for performance of the Services; and/or (5) Place of performance of the Services. If any such changes cause an increase or decrease in the cost of or the time required for performance of any part of the Services or affects warranties and guarantees, an adjustment shall be made and the Service Order shall be modified by written Amendments or Revisions signed by the Parties.
3. Price and Payment: Prices are subject to change without notice. . All changes
in freight rates or transportation charges used by Service Provider in computing prices and charges shown in the Service Order occurring after the date thereof will be for Company’s account. Payment terms are net thirty (30) calendar days after receipt of invoice. A finance charge equal to 1½% per month (18% per annum) will be added to all delinquent accounts.
4. Delays in Performance of the Services. Company shall, at its sole risk, cost
and expense, deliver the equipment requiring repairs to Service Provider’s facility and after completion of the repair services, Company shall, at its sole risk, cost and expense, within five (5) calendar days remove the repaired equipment from Service Provider’s facility, failing which Company shall pay to Service Provider a storage fee as determined by Service Provider. Subject to the foregoing, Neither Party shall be liable for any delays in the performance of the Services to the extent such delays are caused by any unforeseeable condition which is beyond the reasonable control and which could not be avoided by the exercise of ordinary diligence of the Party claiming a delay. Acts of God, such as storms or floods, named or numbered tropical storms, hurricanes, acts of civil or military authorities, fires, epidemics, pandemics, war or riots, work stoppages, accidents, casualties, inability to procure supplies and raw materials, and delays in transportation are non-exclusive examples of events which shall be deemed excusable for being beyond the Parties’ reasonable control, only upon fulfillment of the following conditions: (a) within fourteen (14) calendar days of the discovery of the commencement of any excusable delay, the Party claiming a delay shall provide the other Party with written notice of the cause and extent thereof as well as a notice of a schedule extension and the estimated duration thereof; and, (b) within fourteen (14) calendar days of the discovery of the cessation of the event causing such delay, the Party claiming a delay shall provide the other Party with written notice of the actual delay incurred, upon receipt of which the date of promised delivery shall be extended for the time actually lost by reason of an excusable delay. With respect to the performance of the Services, Service Provider shall use reasonable efforts to progress the Services through to completion. Notwithstanding the foregoing and anything to the contrary contained elsewhere herein, Service Provider shall not be liable for any losses, claims, or damages arising out of or
resulting from any delay in performance of the Services regardless of the cause, except to the extent such delay is the result of the Service Provider’s willful misconduct or gross negligence.
5. Title and Risk of Loss: Title to Company’s materials, goods, equipment and
property shall be and remain with Company at all times. Title to all materials purchased by Service Provider for repairs to Company’s equipment shall transfer to Company upon payment of all amounts due and owing by Company to Service Provider under the Service Order. Notwithstanding the foregoing, Company shall be and remain responsible for and shall bear any and all risk of loss or damage to Company’s materials, goods, equipment and property from the time of delivery to Service Provider’s facility until such time that Company retrieves the materials, goods, equipment and property from Service Provider’s facility after
completion of the Services.
6. Progress: The Services furnished under the Service Order, including all
warranty services, shall be subject to expediting by Company. Company’s representatives shall be afforded reasonable access, including for expediting purposes during Service Provider’s normal working hours to Service Provider’s facilities. If required by Company, Service Provider shall supply schedules, progress reports and unpriced copies of Service Provider’s subcontracts for Company’s use in expediting. Service Provider shall notify Company in writing of any actual or anticipated delays within a reasonable time period after discovery. Such notice shall include an estimated period of delay, cause, and corrective actions being taken. All Company personnel entering Service Provider’s facilities must wear appropriate safety gear at all times, including but not limited to hard hats, safety glasses, steel-toe boots, and high-visibility clothing, as required by applicable safety regulations and Service Provider’s policies.
7. Quality Standards: Service Provider shall comply with the standards of quality
specified by the Service Order. Company’s authorized representatives shall be afforded
reasonable access during normal working hours to Service Provider’s facilities. Company’s
personnel shall comply with the safety gear requirements set out in Clause 5 above.
8. Warranties and Guarantees: Service Provider warrants that the Services shall
conform in all respects to the terms of the Service Order and the applicable specifications. All Services shall be furnished subject to Service Provider’s standard variations and practices. Unless the warranty period is otherwise extended, the conditions of which are provided elsewhere in the Service Order, the following warranty shall apply: if, at any time prior to six (6) months from the date of completion of the Services, it appears that the Services, or any part thereof, do not conform to these warranties or to the specifications applicable thereto, and Service Provider is so notified by Company in writing upon discovery, Service Provider shall promptly correct such nonconformity. Notwithstanding the foregoing, Service Provider’s
warranty obligations shall not extend to any use by Company of the equipment, goods and materials that were the subject of the Services in conditions more severe than the manufacturer’s recommendations nor to any defects which were visually observable by Company but which are not promptly brought to Service Provider’s attention. With respect to any materials, goods or equipment purchased by Service Provider for the Services, Services Provider’s sole and exclusive responsibility under the Service Order shall be to assign to Company the manufacturer’s warranty. SERVICE PROVIDER MAKES NO OTHER WARRANTIES OR GUARANTEES TO COMPANY, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY FLORIDA LAW, ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, ARE HEREBY DISCLAIMED BY SERVICE PROVIDER AND
WAIVED BY COMPANY. Company shall be solely and exclusively responsible for the delivery and return of all materials, goods, equipment and property associated with such claimed defective Services to and from Service Provider’s facility.
9. Intellectual Property: Service Provider shall, at its own expense, hold harmless and defend Company from and against any claim, suit, or proceeding brought against Company on a claim, whether rightful or otherwise, that any Services furnished by Service Provider under the Service Order, constitutes an infringement of any patent. The indemnity is given upon the condition that Company shall promptly notify Service Provider of any claim or suit or proceeding involving Company in which such infringement is alleged, and Company shall permit Service Provider to control completely the defense or compromise of any such allegation of infringement, and Company shall render such reasonable assistance at Service Provider’s cost in the defense thereof as Service Provider may require. The term “Intellectual Property” shall mean (a) all patents, rights in designs, copyrights, computer software, programs, in each case whether registered or not; (b) all proprietary information,
including, without limitation, trade secrets, know-how, manufacturing and production
processes and techniques, and research and development information, databases and data including without limitation, discoveries, formulas, processes, plans, specifications, guidelines, graphics, notes, instructions, training materials, software, software programs software documentation, films, videotapes, slides, scripts, processes, records, drawings, illustrations, masters, tapes, copyrightable works or ideas or materials (and all documentation related thereto); (c) all registrations and applications for registration for any of the foregoing; (d) all rights under licenses and consents in relation to any of the foregoing. No rights will be granted with respect to any trademarks, service marks, trade names or logos of either Party. Company and Service Provider shall retain any right, title and interest in their respective Intellectual Property developed, invented, created, improved, acquired or obtained (i) prior to
the effective date of the Service Order or independently of the Services; (ii) during the term of the Service Order; and (iii) at all times associated with the Services.
10. Compliance: Each Party shall comply with all applicable federal, state, and
local laws, regulations, rules, and ordinances in connection with their respective obligations under the Service Order.
11. Assignment: Neither Party to the Service Order shall assign, transfer or sublet
the Service Order, any portion thereof or any of the obligations, benefits or interests
contained therein or created thereby in any manner whatsoever without the prior written consent of the other Party.
12. Non-Waiver: Any failure by either Party to insist upon strict performance of any
of the terms and conditions hereof, or failure to delay to exercise any rights or remedies provided herein or by law shall not release the other Party from any of its obligations of the Service Order and shall not be deemed a waiver of any rights of the Parties to insist upon strict performance hereof or any of its rights or remedies set forth in the Service Order.
13. Indemnities: For purposes of the Service Order, the term “Service Provider
Group” is used as a reference individually and collectively for Service Provider and its parent, subsidiary and affiliated companies, Service Provider’s subcontractors and vendors of all tiers and its and all of their respective officers, directors, managers, employees, agents, assigns, representatives, contractors, invitees, and the subrogees of all said parties. The term “Company Group” is used as a reference individually and collectively for Company and its parent, subsidiary and affiliated companies, Company’s customers and contractors and all of their respective contractor’s and subcontractors of all tiers and its and all of their respective officers, directors, managers, employees, agents, assigns, co-venturers, invitees, representatives and the subrogees of all said parties.
13.1. Service Provider shall release, defend, protect, indemnify and hold harmless all
members of Company Group from and against any loss, cost, claim, liability, suit, judgment, award or damage (including reasonable attorney’s fees) asserted by any member of the Service Provider Group against any member of the Company Group in respect of: (i) any case of illness, injury or death, suffered by any member of Service Provider Group’s personnel; and (ii) any case of loss or damage to any member of Service Provider Group’s property or equipment (excluding Company’s materials, equipment and property while in the custody of Service Provider), arising out of or relating to the performance of the Service
Order and REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY ANY MEMBER OF COMPANY GROUP’S NEGLIGENCE (INCLUDING ACTIVE, PASSIVE, SOLE, JOINT OR CONCURRENT NEGLIGENCE), OR ANY OTHER THEORY OF LEGAL LIABILITY, INCLUDING STRICT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY AND INCLUDING PRE-EXISTING CONDITIONS, EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF COMPANY.
13.2 Company shall release, defend, protect, indemnify and hold harmless all
members of Service Provider Group from and against any loss, cost, claim, liability, suit, judgment, award or damage (including reasonable attorney’s fees) asserted by any member of the Company Group against any member of Service Provider Group in respect of: (i) any case of illness, injury or death, suffered by any member of Company Group’s personnel; and (ii) any case of loss or damage to any member of Company Group’s materials, equipment and property (including Company’s materials, equipment and property while in the custody of Service Provider) arising out of or relating to the performance of the Service Order and
REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY ANY MEMBER OF SERVICE PROVIDER GROUP’S NEGLIGENCE (INCLUDING ACTIVE, PASSIVE, SOLE, JOINT OR CONCURRENT NEGLIGENCE) OR ANY OTHER THEORY OF LEGAL LIABILITY, INCLUDING STRICT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY AND INCLUDING PRE-EXISTING CONDITIONS, EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SERVICE
PROVIDER.
13.3 The indemnity obligations assumed by the Parties under this Clause 13 shall be
supported by liability insurance and shall have coverage of no less than $5,000,000 per occurrence and which shall be primary to any other insurances provided by the indemnitee. With respect to each Party’s liability insurances supporting the indemnification obligations under this Clause 13, each Party shall name the other Party as an additional assured and cause its underwriters to waive all rights of subrogation against the other Party and all members of the other Party’s Group. Notwithstanding the forgoing, each Party agrees that the primary status of its insurances, having its underwriters name the other Party as additional
assured and waiving subrogation against all members of the other Party’s Group are all only to the extent of the risks for which indemnitor has agreed to assume responsibility and indemnify or release the indemnitee under the Service Order. Additional assureds shall be entitled to the full limits of all policies actually obtained to support the indemnification obligations under this Clause 13, including excess or umbrella insurances. Except as expressly provided, the limits and coverages of the said insurances shall in no way limit the liabilities or obligations assumed by the Parties under this Clause 13. The Parties shall deliver to each other prior to commencement of the Services, certificates of insurance reflecting the insurance provisions set forth in the Service Order. If it is judicially determined that the monetary limits of insurance required hereunder or the indemnities assumed under
this Clause 13 exceed the maximum monetary limits or scope permitted under applicable law, it is agreed that said insurance requirements or indemnities shall automatically be amended to conform to the maximum monetary limits or scope permitted under such law.
13.4 Each Party expressly acknowledges that the indemnities set forth in this Clause 13 have been negotiated and are intended to be fully enforceable under Florida law.
14. Insurances: During the performance of the Service Order, Service Provider, at
its sole cost and expense except as specifically set forth to the contrary below, shall procure and maintain the insurance coverages or their substantial equivalents and endorsements set forth in this Clause 14 and with the insurance underwriters and upon terms reasonably satisfactory to Company. Where applicable, each insurance policy described below shall be endorsed as follows: (1) Underwriters shall waive their rights of subrogation against all members of Company Group but only to the extent of Service Provider’s indemnification obligations under Clause 13.1 of the Service Order; (2) To provide thirty (30) calendar days’ prior written notice of cancellation, material change or reduction of coverage to Company and any permitted assignees of Company; (3) To provide adequate territorial limits, and (4)
except for the Workmen’s Compensation policy, Company shall be named as an additional assured under such policies, but only to the extent of Service Provider’s indemnification obligations under Clause 13.2 of the Service Order.
Service Provider shall maintain a Workmen’s Compensation policy complying with all of the statutory benefits required by Florida’s Workmen’s Compensation and Occupational Disease laws. Service Provider shall maintain a Commercial General Liability insurance policy covering all operations of the Service Provider. This policy shall include the following coverages: (1) Premises and Operations; (2) Contractual Liability, insuring the indemnity agreements contained in the Service Order; (3) Service Provider’s Protective Liability, covering work-let or sublet; and (4) Limits of coverage as required by excess liability or umbrella insurance as provided hereunder. Service Provider shall also maintain a Comprehensive Automobile Liability insurance policy providing coverage for all owned, hired, and non-owned automobiles with the coverage limits as required by the Excess Liability or Umbrella insurance company. Service Provider shall maintain an Excess Liability Insurance or Umbrella Insurance policy supplementing the primary coverages of the policies required above with a limit of $5,000,000.
15. Vendor Data: Service Provider shall provide to Company a minimum of two
(2) copies of all data on the Services being performed. Prior to commencement of the
Services, Company shall deliver to Service Provider all materials and goods being purchased by Company as well as operational and maintenance manuals, drawings and spare parts data, as well as listings of all recommended spare parts required for the Services.
16. Inspection: Service Provider shall allow Company to undertake an inspection
of the Services. Service Provider shall provide to Company a minimum of twenty-four (24) hours prior notice of any inspection or test to which the Services are being subjected to allow Company to attend such inspection or test.
17. Choice of Law; Arbitration: The laws of the State of Florida shall control the
validity, construction and interpretation of the Service Order excluding any conflicts of laws principles that would direct the substantive law of another jurisdiction to apply. All claims, disputes or controversies arising out of, or in relation to the interpretation, application or enforcement of the Service Order shall be decided by resort of either Party to arbitration utilizing a single neutral arbitrator in accordance with the Commercial Rules of the American Arbitration Association. The arbitration shall be held in Tampa, Florida. The decision of the arbitrator shall be final, binding and enforceable in any court of competent jurisdiction and the Parties agree that there shall be no appeal from the arbitrator’s decision. All statutes of limitation that would otherwise be applicable shall apply to any arbitration proceeding. The arbitrator shall have the authority to award attorneys fees. The right to arbitrate shall survive
the termination of the Service Order. THE PARTIES ACKNOWLEDGE AND AGREE THAT BY AGREEING TO ARBITRATION, THEY ARE WAIVING THEIR RIGHT TO HAVE ANY CLAIM OR DISPUTE DECIDED BY A JUDGE OR JURY.
18. Independent Contractor: In the performance of its Services under the Service
Order, Service Provider’s status shall be that of an independent contractor and the
relationship of the Company and Service Provider shall in no event be construed or
interpreted as being that of principal and agent, master and servant, or employer and
employee, and the employees of each Party shall not be deemed to be employees of the other Party for any purpose.
19. Consequential Damages: Neither Service Provider nor Company nor any
member of their respective Groups, shall be liable to the other for any consequential,
incidental, indirect, exemplary or punitive damages of any kind or character, including, but not limited to, loss of use, loss of profit, loss of revenue, loss of contracts, loss of reputation whenever arising out of or related to the Service Order or as a result of, relating to or in connection with the materials, Services or equipment provided hereunder, and no claim shall be made by either Service Provider or Company against the other or the members of their respective Groups REGARDLESS OF WHETHER SUCH CLAIM IS BASED OR CLAIMED
TO BE BASED ON NEGLIGENCE (INCLUDING SOLE, JOINT, ACTIVE, PASSIVE, OR CONCURRENT NEGLIGENCE), OF ANY PERSON OR ENTITY INCLUDING ANY MEMBER OF COMPANY GROUP OR SERVICE PROVIDER GROUP FAULT, BREACH OF WARRANTY, BREACH OF AGREEMENT, STATUTE, STRICT LIABILITY OR OTHERWISE, and whether or not the damages were foreseeable at the time of entering into the Service Order and regardless of whether the liable Party was advised of the possibility of such damages. Notwithstanding the foregoing, this waiver shall not apply to a party’s obligations to indemnify against third party claims arising under Clause 13.1 or 13.2.
20. Taxes: The prices provided for herein are exclusive of any present or future
Federal, State, Municipal or other sales or use tax with respect to the Services covered hereby, of any other present or future excise tax upon or measured by the gross receipts from this transaction or any allocated portion thereof or by the gross value of the Services covered hereby, and of any present or future property tax or similar charge with respect to the Services covered hereby. If Service Provider is required by applicable law or regulation to pay or collect any such tax or taxes on account of this transaction on the material or equipment or Services covered hereby, then such amount of tax shall be paid by the Company in addition to the prices for the Services provided for herein.
21. Termination: In the absence of a breach of any of the conditions of the Service
Order, the Service Order may not be canceled, terminated or modified by either Party, whether in whole or in part, except with the written consent of both Parties. The following Clauses shall survive any cancellation or termination of the Service Order – 3, 4, 5, 8. 9, 10, 11, 12, 13, 14, 17, 19, 20, 23, and 24.
22. Severability. If, in any legal proceeding, it is determined that any provision of
the Service Order is unenforceable under applicable law, the unenforceable provision shall automatically be amended to conform to that which is enforceable under the law. In any event, the validity or enforceability of any provision shall not affect any other provision of the Service Order, and the Service Order shall be construed and enforced as if such provision had not been included.
23. Third Parties. Except as provided for elsewhere in the Service Order, the
Service Order shall not be construed to confer any benefit on any third party not a Party to the Service Order nor shall it provide any rights to such third party to enforce its provisions.
24. Limitation of Liability. The Service Provider’s total, aggregate liability for any
claim arising out of or relating to defective or deficient Services discovered during the
applicable warranty period shall be limited, at the Service Provider’s sole option, to (i) the reperformance of such Services or (ii) the refund of any fees paid for the portion of Services claimed to be defective or deficient. TO THE FULLEST EXTENT PERMITTED BY FLORIDA LAW, THE COMPANY, FOR AND ON BEHALF OF ITSELF AND ALL MEMBERS OF THE COMPANY GROUP, HEREBY KNOWINGLY AND VOLUNTARILY RELEASES AND DISCHARGES THE SERVICE PROVIDER FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING FROM OR RELATED TO SUCH DEFECTIVE OR DEFICIENT SERVICES,
EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE SERVICE PROVIDER