TERMS AND CONDITIONS (“Agreement”)

 

By engaging with greensource Cincinnati (“Company”) in any capacity, whether as a customer, vendor, contractor or sub-contractor, partner, promoter, or any other form of commercial relationship, you hereby agree to these Terms and Conditions. Please review them carefully. Revisions to the Terms and Conditions shall be posted online at http://www.greensourcecincinnati.com/terms-and-conditions/, or can be made available to you by a member of the Company team upon request.

Any alterations or modifications to these Terms and Conditions must be agreed upon in writing by you and a Company officer.

These Terms and Conditions, and your agreement to abide by them form a legal Agreement between you and the Company (Agreement). If you wish not to form an Agreement with the Company by accepting these terms, please notify a Company officer immediately.

The individuals and or entities bound by these Terms shall be referred to as “Party” or collectively, “Parties.” The Articles contained herein have been titled based on which Parties are most directly affected by the Terms; however, all terms of this Agreement, if applicable, shall apply to all third Parties with whom the company interacts, including but not limited to: customers, vendors, partners, contractors, and subcontractors.

 

Article I

Customers (“Buyer”)

 

a.) Offers, Quotations, Estimates, and Proposals. All offers, quotations, proposals, and the like are valid for 30 days unless stated otherwise on their face, or explicitly modified in writing by Company. Prices and terms are subject to change if not accepted in writing by Buyer within this time period. Issuance of purchase orders or written authorization to proceed shall constitute acceptance. Failure to fully release order for shipment and invoicing with 60 days of acceptance may result in order cancellations or other modifications, including price changes. Any delay in shipment caused by the Buyer or Buyer’s agents may result in price increases as determined by the Company. The Company’s obligation to furnish goods and services shall be limited to those described in the Company submittal data, and only to the extent that the goods and services are expressly described in writing. Any and all goods or services deemed necessary to fulfill the obligations of the Company not expressly agreed to in writing will not be furnished unless approved in writing by a Company officer. Unless otherwise stated in writing, quotations, proposals and estimates exclude factory check, test, start-up, and/or any other owner instruction/training. Buyer may purchase these additional services upon request, and Company may require such additional services to be purchased by Buyer in conjunction with other equipment and services.

b.) Change Orders. Customer may request a Change to a Product order provided that the request for Change is delivered to Company at least thirty days (30) prior to the scheduled shipping date. Customer shall pay to Company all reasonable costs associated with the Change. 

c.) Taxes and Freight. Unless explicitly stated in writing, Quotations, Proposals, Estimates, and the like do not include taxes of any kind, or applicable freight charges. Any applicable gross receipts, sales, or use, Federal, State or Local or any applicable taxes and government charges will be added to the total price unless acceptable written evidence of exemption is provided by the Buyer to Company.

All prices are quoted F.O.B. Shipping Point. The Company’s obligation to perform and the price thereof under this Agreement are subject to approval of Buyer by the Company’s Credit Department. Accounts in good standing are eligible for credit terms of 30 days.

d.) Payments. Each invoice will contain a “payment due” date. Please remit payment as soon as possible, but it all cases, before the “due” date to avoid late payment penalties and interest. Late payment penalties will be assessed on all invoices not paid in full within 10 calendar days from the “due date,” at which time there will be a 2.5% penalty assessed on the invoice amount due. Late payment penalties of 2.5% of the total principal and interest will be assessed every 30 calendar days from the initial penalty until the invoice amount is paid in full. Buyer shall also be responsible for any legal or administrative costs associated with collection efforts.

Acceptable methods of payment will be determined by Company in its discretion. If Company accepts credit or debit card payments, it may assess a 3% “convenience fee” on all such transactions.

e.) Cancellations. If Buyer cancels any portion or an entire order after acceptance, or fails to issue written authorization to proceed within two months of acceptance, for reasons other than default or written consent by the Company officer, Buyer shall be liable for cancellation charges and costs, including overheads and a reasonable profit.

f.) Limitation of Liability and Warranty. Company shall be liable for only the cost of services it incurred to perform its obligations under the terms expressly included in this Agreement. It shall not be liable for any incidental, special or consequential damages. This warranty is in lieu of all other warranties, express, implied or statutory including the implied warranties of merchantability and fitness for a particular purpose. The Company shall incur no liability until products and services are paid for in full and said liability shall be limited to the terms stated in this Agreement and to the extent of the company’s sole negligence. Company shall not be liable for any repairs, replacements or damages of any type, inability to use the products. The Company shall not be liable for failure to perform when prohibited to do so by strikes, labor disputes, wars, acts of God, or Governmental restrictions, and/or restrictions of any kind by the manufacturers of materials and equipment specified in this Agreement. The Company’s liability for design and application errors shall be limited to the extent the Company performed the design in writing under the terms of this Agreement. The Company shall not be held responsible for acts of the Buyer or Buyer’s agents, nor for acts of any Contractor or Subcontractor hired by the Company to perform work for Buyer. Any errors, omissions, accidents, or failures experienced in conjunction with work performed by Buyer, Buyer’s agents, or Contractors or Subcontractors hired by Company to perform work for Buyer shall be handled directly between Buyer and those other Parties, without involvement of Company, except that Company shall cooperate in the event any reasonable request is made to assist in the investigation and resolution of a matter.

g.) Incorporated Terms. The Schneider Electric IT General Terms of Sale, found at http://www.apc.com/company/us/en/other-corporate-info/schneider-electric-it-general-terms-of-sale/, are hereby incorporated into this Agreement, and all Buyer interactions are hereby subject to those Terms. In the event any terms of this Agreement and the terms found in the Schneider Electric IT General Terms of Sale Agreement are found to be in conflict, the terms of this Agreement shall dictate. If the location of the Schneider Electric IT General Terms of Sale Agreement online shall change, Company will make every effort to update these Terms and Conditions accordingly, but failure to do so will have no effect on the incorporation of the Schneider Electric IT General Terms of Sale Agreement into this Agreement.

 

Article II

Contractors and Subcontractors (“Contractor”)

 

a.) Definitions. “Work” means all of Contractor’s obligations under the Agreement. “Owner” means either Company, or a customer of Company, depending on context of the matter. In any case, “Owner” shall refer to the Party enforcing the terms of this Agreement against Contractor.

b.) Warranty. Contractor warrants that the Work shall be free of workmanship, material and design defects, new, and in conformance with the Agreement and applicable industry standards. For a period of 12 months from completion and acceptance of the Work, Contractor shall repair or replace, at its expense, including any related removal, installation or transportation cost, any defective or non-conforming Work. Owner’s final acceptance of the Work shall not relieve Contractor of its warranty obligations. In the event of an emergency, or if Contractor fails to correct a defect within a reasonable period of time, Owner may repair or replace any defect in warranted Work at Contractor’s expense. Contractor will be solely responsible for all damages that occur due to Contractor’s breach of this Agreement.

c.) Insurance. Contractor shall at its sole expense, procure and maintain, and shall cause its subcontractors to procure and maintain, throughout the term of this Agreement, the following types of insurance with the following, minimum limits: (a) workers’ compensation insurance in accordance with all jurisdictions where Contractor has operations including where the Work is to be performed (if Contractor is a non-subscriber to workers’ compensation, evidence of insurance equivalent to workers’ compensation must be provided); (b) employer’s liability in an amount not less than $1,000,000; (c) business automobile insurance covering all Owned, Non-owned and hired autos in an amount not less than $1,000,000 per occurrence; (d) commercial general liability insurance covering claims of bodily injury and property damage in an amount not less than $1,000,000 per occurrence.

To the extent permitted by law, Contractor shall waive, and shall cause each of its insurers to waive, any and all rights of recovery, by subrogation or otherwise, against Owner and its affiliates, officers, directors, employees, agents and assigns of any type. Each of the insurance policies indicated above shall be primary to and non-contributory with any insurance or self- insurance of Owner. The Commercial General Liability and the Business Automobile shall include Owner as an additional insured with respect to Owner’s liability arising out of the operations of Contractor. Such coverage shall also include blanket contractual coverage and contain no exclusion for explosion, collapse, or underground property damage (XCU coverage). The insurance required by this Article 11 is in addition to and separate from any other obligations contained in the Agreement. If any of the policies indicated above are placed on a “claims-made” basis, such coverage shall be maintained for a period of not less than five (5) years following the completion of the Work. Products and/or completed operations coverage shall be maintained for a period of five (5) years after the completion of the Work. Any deductibles or retentions on any of the policies required herein shall be the sole responsibility of the Contractor. The above referenced limit requirements may be met by any combination of umbrella or excess and primary policies so long as the total limit of insurance requirement is met. The required coverages referred to herein shall in no way affect, nor are they intended as a limitation of, Contractor’s liability with respect to its performance of the Work.

Upon inception of the Agreement and prior to the commencement of Work, Contractor shall provide Owner with an acceptable certificate of insurance evidencing the insurance required herein. Contractor will not be permitted to bring its employees, materials or equipment onto a work site until Owner receives such evidence of insurance. Contractor also must provide an updated certificate of insurance at any time during the Agreement term upon Owner’s request. Contractor shall immediately notify Owner of cancellation or any material changes in the insurance policies required herein. If such insurance policies are subject to any exceptions to the terms specified herein, such exceptions shall be explained in full in such certificates. Owner may, at its discretion, require Contractor to obtain insurance policies that are not subject to non-standard exceptions.

Company’s failure to collect verification of Contractor insurance coverages described herein shall not absolve Contractor from maintained appropriate coverages pursuant to this Agreement.

d.) Independent Contractor. The Parties intend that this Agreement create an Independent Contractor relationship between them. Contractor is not an agent or employee of Company for any purpose. Company is not responsible for deducting, and shall not deduct, from payments to Contractor any amounts for withholding tax, FICA, insurance or other similar item relating to Contractor or Contractor’s employees. Contractor shall be solely responsible for deducting and paying such items. Neither Contractor nor Contractor’s employees shall be eligible or entitled to any of the benefits to which employees of Company may be entitled on the account of Company, such as worker’s compensation, unemployment compensation, insurance, paid vacations, paid holidays, pension, profit sharing, Social Security, and other benefits that may be available.

e.) Scope of Work. Prior to commencing Work, Contractor shall provide to Company a complete Scope of Work to be performed by Contractor. Once approved by Company, Contractor shall be required to complete all items listed on the Scope of Work to the satisfaction of the Company, at its sole discretion. Contractor shall not perform any Work until explicitly instructed to do so, and until the Scope of Work is explicitly accepted by Company. Failure to complete the Scope of Work shall be grounds for forfeiture of payment, and Company shall have the right to recoup any amounts paid during the course of the Work if the full Scope of Work is not fully completed, and Contractor has not received written approval to stop Work prior to the full completion of the project according to the Scope of Work.

f.) Payment and Schedule. Work will be scheduled between Company and Contractor collaboratively, and may also be dictated by Company’s customers. Once scheduled, Contractor may not modify or alter the Work schedule for any reason, and must deliver upon deadlines agreed upon. Any failure to do so may result in monetary damages as contemplated in this Agreement.

Payments shall be processed in accordance with the terms agreed upon between Customer and Contractor, in writing, typically via standard instruments such as purchase orders and invoices.

g.) Compliance with Laws. Contractor shall comply with all applicable laws, rules, regulations and orders of any governmental authority, and will obtain at its expense all permits and licenses, pertaining to its obligations under the Agreement. Contractor agrees to indemnify and save Company and Company customers harmless from and against any liability or damages, including attorneys’ fees, for non-compliance therewith by Contractor.

h.) Safety. Contractor shall perform the Work in a safe and careful manner and use such safety devices and methods as are necessary to protect its employees, agents, subcontractors, Owner’s employees and agents, other contractors and the public from bodily harm and damage. Contractor shall comply with and enforce all laws, rules and regulations applicable to safety and health standards, including but not limited to the Occupational Safety and Health Act of 1970 (OSHA), and any revisions to OSHA or successor legislation. Contractor shall comply with all project and site safety and security rules and procedures issued by Owner, provided that such rules and procedures do not conflict with OSHA or other safety laws, rules and regulations. Contractor shall provide Owner with Material Safety Data Sheets for all applicable materials prior to delivery to Owner’s site.

i.) Substance Abuse Program. Contractor and all subcontractors performing Work at Owner’s site must have a substance abuse program. This program must apply to all personnel. The requirements of the program must be in alignment with standards and practices of the industry in which Contractor operates.

j.) Intellectual Property. Contractor warrants that its performance of the Work will not infringe upon or violate any trademarks, patents, copyrights, trade secrets or other third Party property rights. If the performance of Work is held in any action to constitute infringement, or the use of the Work is enjoined, Contractor, at its expense, shall procure for Owner the right to continue use of the Work, or replace the Work with non-infringing materials or methods satisfactory to Owner, or modify the Work in a manner satisfactory to Owner so that the Work becomes non-infringing. Contractor agrees to indemnify and save Owner harmless from and against any liability or damages, including attorneys’ fees, arising out of any allegation that the Work infringes or violates third Party intellectual property rights. Owner will own the Work and any intellectual property, including trademarks, patents, patent applications, copyrights, and trade secrets, resulting from the Work. Work performed hereunder shall be deemed “work made for hire”. In the event Work performed hereunder is determined not to be a “work made for hire”, Contractor hereby assign to Owner all rights in any intellectual property, including without limitation trademarks, patents, patent applications, copyrights, and trade secrets, that result from the Work. Contractor will execute and deliver documents, including agreements with its employees and agents and assignment documents, necessary to effectuate Owner’s ownership of such intellectual property.

k.) Confidentiality. Each Party agrees (a) to protect the Confidential Information of the other with at least the same degree of care used to protect its own most confidential information; (b) not to use (except for the purpose described herein), publish or disclose to third Parties such Confidential Information; and (c) upon the request of the other Party, to promptly deliver to the other Party all written copies of its Confidential Information. “Confidential Information” shall include, but not be limited to, business plans and methods; customer information; engineering, operating and technical data; and the dates of Owner’s outage schedule(s). Contractor shall not use Owner’s name or logo in marketing or endorsements without the prior written consent of Owner. Notwithstanding the foregoing, a recipient shall be entitled to disclose Confidential Information to its officers, employees, affiliates (including any joint ventures of which Owner or any of its affiliates are a member and the other members of such joint ventures), agents, lenders, attorneys and other advisors (collectively, “Representatives”), provided that the Representatives shall be informed of the confidentiality obligations provided herein.

l.) Non-Compete. The Contractor agrees, that during the term of this Agreement and for a period of two years after the expiration or termination of this Agreement for any reason, neither the Contractor nor any of its members, employees, agents, affiliates and/or subcontractors will perform any similar services for any customer of Company for whom the Contractor has performed services on behalf of the Company. Contractor shall not provide quotations for the same or similar scope of work directly to a customer of the Company for a period of two years after Company requests quotation for Contractor services for said customer.

m.) Indemnification. (a) The laws of the state where the Work giving rise to the claim is performed shall apply to this Article 2(m). (b) TO THE EXTENT PERMITTED BY LAW, CONTRACTOR SHALL INDEMNIFY, DEFEND AT ITS EXPENSE, AND SAVE COMPANY/OWNER HARMLESS FROM, ANY LIABILITIES, COSTS AND CLAIMS, INCLUDING JUDGMENTS RENDERED AGAINST, AND FINES AND PENALTIES IMPOSED UPON, COMPANY/OWNER AND REASONABLE ATTORNEYS’ FEES AND ALL OTHER COSTS OF LITIGATION (COLLECTIVELY, “LIABILITIES”), ARISING OUT OF THE AGREEMENT, INCLUDING INJURIES, DISEASE OR DEATH TO PERSONS, OR DAMAGE TO PROPERTY, AND ENVIRONMENTAL CLAIMS AND LIABILITIES, CAUSED BY CONTRACTOR, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS, OR IN ANY WAY ATTRIBUTABLE TO THE PERFORMANCE OF THE AGREEMENT, EXCEPT THAT CONTRACTOR’S OBLIGATION TO INDEMNIFY OWNER SHALL NOT APPLY TO ANY LIABILITIES ARISING FROM COMPANY’S/OWNER’S SOLE NEGLIGENCE. COMPANY/OWNER SHALL HAVE THE RIGHT TO SELECT ITS OWN COUNSEL AND TO HAVE COUNSEL SEPARATE FROM CONTRACTOR, ALL AT CONTRACTOR’S EXPENSE. (c) WITH RESPECT TO CLAIMS AGAINST OWNER BY CONTRACTOR’S EMPLOYEES, CONTRACTOR UNDERSTANDS AND AGREES THAT THIS INDEMNIFICATION OBLIGATION SHALL NOT BE LIMITED IN ANY WAY BY, AND CONTRACTOR EXPRESSLY WAIVES, ITS IMMUNITY AS A COMPLYING EMPLOYER UNDER ANY APPLICABLE WORKERS’ COMPENSATION LAW, BUT ONLY TO THE EXTENT THAT SUCH IMMUNITY WOULD BAR OR AFFECT RECOVERY UNDER OR ENFORCEMENT OF THIS INDEMNIFICATION OBLIGATION. With respect to the State of Ohio, this waiver applies to Section 35, Article II of the Ohio Constitution and Ohio Rev. Code Section 4123.74. (d) CONTRACTOR SHALL BE LIABLE FOR REASONABLE ATTORNEYS’ FEES AND ALL COSTS OF LITIGATION ASSOCIATED WITH ENFORCEMENT OF ALL INDEMNITY OBLIGATIONS SET FORTH IN THE AGREEMENT.

FOR THE AVOIDANCE OF DOUBT, CONTRACTOR SHALL BE HELD SOLELY RESPONSIBLE FOR ANY ERRORS, OMISSIONS, FAULTS, OR OTHERWISE SUBSTANDARD PERFORMANCE DELIVERED TO COMPANY CUSTOMERS. COMPANY SHALL NOT BE HELD RESPONSIBLE FOR ANY ELEMENT OF CONTRACTOR’S WORK OR PERFORMANCE, NOR SHALL COMPANY’S INSURANCE CARRIERS INCUR ANY LIABILITY FOR THE WORK COMPLETED BY CONTRACTORS.

n.) Limitation of Liability and Warranty. Company shall be liable for only the cost of services it incurred to perform its obligations under the terms expressly included in this Agreement. It shall not be liable for any incidental, special or consequential damages. This warranty is in lieu of all other warranties, express, implied or statutory including the implied warranties of merchantability and fitness for a particular purpose. The Company shall incur no liability until products and services are paid for in full and said liability shall be limited to the terms stated in this Agreement and to the extent of the company’s sole negligence. Company shall not be liable for any repairs, replacements or damages of any type, inability to use the products. The Company shall not be liable for failure to perform when prohibited to do so by strikes, labor disputes, wars, acts of God, or Governmental restrictions, and/or restrictions of any kind by the manufacturers of materials and equipment specified in this Agreement. The Company’s liability for design and application errors shall be limited to the extent the Company performed the design in writing under the terms of this Agreement. The Company shall not be held responsible for acts of the Buyer or Buyer’s agents, nor for acts of any Contractor or Subcontractor hired by the Company to perform work for Buyer. Any errors, omissions, accidents, or failures experienced in conjunction with work performed by Buyer, Buyer’s agents, or Contractors or Subcontractors hired by Company to perform work for Buyer shall be handled directly between Buyer and those other Parties, without involvement of Company, except that Company shall cooperate in the event any reasonable request is made to assist in the investigation and resolution of a matter.

o.) Assignment and Subcontracting. Contractor may not subcontract, assign, or otherwise dispose of the Agreement without the prior written consent of Company.

p.) Records. Company reserves the right to audit records necessary to permit evaluation and verification of claims submitted, and Contractor’s compliance, in the performance of this Agreement and its dealings with Company, with (a) the Agreement requirements; and (b) Company’s Code of Business Conduct governing business ethics. Contractor shall retain for a period of three years following final payment all information and records relating to the Work performed under the Agreement. Company may examine and copy such information and records at Contractor’s premises during regular business hours.

q.) Affiliated Companies. Any indemnification of Company and any limitation of Company’s liability shall to the same extent apply to Company’s directors, officers, employees, agents and affiliated companies (including any joint ventures of which Company or any of its affiliates are a member and the other members of such joint ventures), and the directors, officers, employees and agents thereof.

 

Article III

General Provisions

 

a.) Governing Law. The laws of the State of Ohio shall govern the Agreement. All Parties agree that all actions and proceedings brought by Company may be litigated in courts located in the State of Ohio or in the state where the work was performed. All Parties agree that such courts are convenient forums and irrevocably submits to the personal jurisdiction of such courts. All Parties waive personal service of process and consents to service of process by certified or registered mail at the address on file with the Company.

b.) Claims Resolution. For the sake of speed, efficiency, and cost avoidance, all Parties hereby agree to make a good faith effort to pursue alternative dispute resolution methods such as negotiation, mediation, and arbitration, prior to resulting to other litigation methods in the event a dispute surrounding this Agreement and its Terms shall arise.

c.) Force Majeure. Neither Party shall be in breach of the Agreement to the extent that any delay or default in performance is due to causes beyond the reasonable control of the delayed or defaulting Party (“Force Majeure Event”), provided that the delayed or defaulting Party immediately notifies the other Party of the Force Majeure Event, an estimate of the duration of the Force Majeure Event, and the delaying or defaulting Party’s plan to mitigate the effects of the delay or default.

d.) Survival. All of the terms of the Agreement which by their nature extend beyond the expiration or termination of the Agreement, including indemnification obligations, confidentiality obligations, limitations of liability, shall survive expiration or termination of the Agreement and remain in full force and effect.

e.) Entire Agreement and Modification. Unless otherwise agreed to in writing by Company, the terms of this Agreement shall represent the entire Agreement between Company and third Parties. Any modification to these terms must be executed by both Parties, in writing.