GENERAL TERMS AND CONDITIONS
1. Terms and Conditions.
If the proposal is accepted, the customer/owner and Capital Coating shall be bound to the terms and conditions set forth below, notwithstanding any other terms and conditions contained in any other document of the customer/owner. Such terms and conditions shall consist of the Proposal, these General Terms and Conditions, any special terms and conditions incorporated therein, and all other documents incorporated therein to include, without limitation, all pertinent drawings, plans, specifications and addenda thereto. All such documents, if not attached to the proposal, shall be available for inspection by the customer/owner. The Contract Documents are the Proposal, these General Terms and Conditions, the Specifications, any Special Terms and Conditions and any other instrument identified in the Proposal as a Contract Document. The Contract Documents together comprise the agreement (the “Contract”) between Capital Coating and the person (alternatively referred to as the “Owner” and the “Customer”) identified as the Owner in the Proposal.
The terms and conditions of the Contract Documents and any other confidential or proprietary information disclosed herein by one party to the other shall be and remain the confidential information of the disclosing party, and will not be disclosed by the receiving party or its agents, subcontractors, servants or employees to any other person, firm or entity, without the prior written approval of the disclosing party. The existence of the business relationship between parties, as well as the terms and conditions of the proposal transactions, shall be considered confidential information of both parties and shall not be disclosed by either party (or its agents, Subcontractors, servants or employees) to any other person, firm or entity without prior written approval of the other party.
3. Notice of Scope of Work.
Owner warrants that: (a) Owner has had an opportunity to review and inspect all pertinent contract documents, including but not limited to the drawings, specifications and plans and all addenda thereto, (b) Owner has paid attention to possible ambiguities, defects, errors and omissions (“Defects”), if any, in the work description, specifications, drawings, plans and all addenda thereto, (c) Owner agrees to give notice to Capital Coating of such Defects as soon as they are discovered, and (d) Owner further agrees that Owner shall be responsible for any costs, claims, damages, actions and the like related to or arising out of any such ambiguities, defects, errors and omissions regarding which Owner has not given such notice, whether Owner actually discovered them or reasonably should have discovered them.
4. Scope of Work.
The Work (the “Work”) consists of the labor and materials to be furnished and the work to be done by Capital Coating as described and/or depicted in the Contract Documents.
In exchange for Capital Coating’s good faith performance and completion of the Work in accordance with Contract Documents, the Owner shall timely pay the amount set forth in the Proposal. Payment shall be made in accordance with the Contract Documents.
6. Late Payments.
No partial payment to Capital Coating shall operate as a waiver of the full amount due or any remedies available to Capital Coating under this Contract, law or equity. In the event of a dispute between the parties, Capital Coating may, in addition to its other remedies, retain any paid amount in dispute until such dispute is finally settled and may suspend performing the Work.
7. Project; Cooperation.
If the Work is a portion of a larger undertaking by Owner (the “Project”), Owner shall coordinate with other contractors employed on the Project and take all measures necessary to ensure cooperation by such contractors with Capital Coating and shall plan and conduct the Project so as not to interfere with Capital Coatings operations.
Owner may request changes to the Work. No change to the Work will be implemented in the absence of a written change order received by Capital Coating. Owner shall negotiate in good faith to reach an equitable adjustment regarding any change order. In the event that Owner requests a change order prior to the conclusion of, or in the absence of, such negotiations, and Capital Coating continues with the performance of the Work as changed, and if the parties do not agree upon the adjustment, the time for performance and the amount to be paid by Owner shall be equitably adjusted based upon Capital Coating’s increased or decreased costs to carry forth the change, and shall include a profit in proportion to the original Work, all as determined by any court of competent jurisdiction should the parties fail to agree on such adjustment.
Capital Coating warrants and guarantees the Work as set forth in the Warranty documents.
10. Legal Compliance.
Capital Coating shall be entitled to suspend the Work in the event that continuation might violate any governmental requirements applicable to the Work.
Capital Coating may declare Owner to be in default under the Contract in the event that the Owner shall: (a) fail to perform in any respect Owner’s obligations under the Contract; (b) become insolvent; (c) have a petition in bankruptcy or for appointment of a receiver filed by or against it; (d) make an assignment for the benefit of creditors; or (e) fail to pay its debts, whether or not for borrowed money, when due.
The remedies of Capital Coating set forth in the Contract are cumulative, not alternative, and are in addition to any other remedies available at law or equity. In addition to any other remedy, in the event of any default by Customer, Capital Coating shall be entitled to do one or more of the following:
(a) Require a complete cure by Owner at the sole expense of Owner;
(b) Terminate the Contract, partially or entirely, and receive damages;
Owner shall reimburse Capital Coating for all its costs and expenses (including reasonable counsel fees) and damages, including both direct and consequential, incurred by Capital Coating by reason of Owner’s default.
Owner shall indemnify and hold harmless Capital Coating and each of its directors, officers, employees and agents from and of all costs (including reasonable counsel fees), claims, demands, actions and causes of action which relate to or arise by reason of any act or omission of Owner (or any of Owner’s directors, officers, employees, agents, successors or business invitees), whether such act or omission is intentional, reckless, negligent or inadvertent, and regardless of any sole or concurring acts, omissions or negligence of Capital Coating.
15. Nature of Relationship.
For all purposes, including but not limited to purposes relating to the laws and regulations concerning unemployment compensation, Workers’ Compensation, prevailing wage and other labor matters, and with respect to the keeping of records, making of reports and paying taxes and payroll contributions, it is specifically agreed that (a) Capital Coating is an independent Contractor and (b) neither party is the agent of or authorized to make any representations or incur any liabilities on behalf of the other.
No failure to enforce any provision of the Contract shall be construed to be a waiver of any rights which Capital Coatings may have with respect the same or any other provision.
The Contract constitutes the entire agreement between Capital Coating and Owner relating to the Work. The Contract shall not be modified except by a writing signed on behalf of both parties. The Contract Documents are the exclusive agreement between the parties, are a full integration of their agreement, and exclude any other representations, papers, terms and/or conditions Owner may have furnished in any manner to Capital Coating.
The captions at the beginning of each Section are for convenience only and are to be given no weight in construing the provisions of the Contract.
If any portion of the Contract should be deemed by any court of competent jurisdiction to be void, voidable, or unenforceable, the remaining provisions shall nevertheless continue in full force and effect.
Non-Solicitation of Employee, Customer, Sub-Contractor, Supplier, or Business Relation. Client shall not, during the term of its engagement and for a period of two (2) year thereafter, (a) directly or indirectly, recruit, solicit, attempt to persuade, or assist in the recruitment or solicitation of, any person who is or was an employee or agent during engagement and for two (2) year thereafter, for the purpose of employing him, her, or them or obtaining his, her or their services or otherwise causing him, her or them to leave his, her or their employment with Capital Coating; or (b) directly or indirectly recruit, solicit, attempt to persuade, or assist in the same, of any customer, client, supplier, or business relation of Capital Coating to cease doing business with Capital Coating, or in any other way interfere with the relationship between any customer, client, supplier, or business relation and Contractor.
21. Order of Precedence.
(a) In the event of any conflict in the Contract Documents, the order of precedence shall be as follows:
(i) General Conditions
(ii) Any Special Terms and Conditions
(b) Nothing in this Section shall be construed to excuse Owner from its duty to inspect all Contract Documents and to bring all ambiguities to the attention of Capital Coating and effect a resolution thereof. The term “Contract Documents” shall be deemed to exclude any Owner furnished terms or conditions inconsistent with Capital Coating drafted terms and conditions. In the event Owner includes in any communication, by submission, attachment, reference or otherwise, documents with terms inconsistent with the terms and conditions of the General Conditions, Special Terms and Conditions and/or Capital Coating drafted portions of the Proposal, such inconsistent terms and conditions shall be deemed void, the remainder of the Owner submission shall be deemed valid, and all such remaining terms and conditions shall be subordinated in precedence to those in the Contract Documents.
22. Title to Work – Objective manifestations of the Work, including by way of illustration and not by way of limitation, drawings, electronic files, photographs, surveys, plans, descriptions, narratives, information, data and the like shall be the sole and exclusive property of Capital Coating until final payment for the Work
23. Acceptance – Upon acceptance, either by verbal, writing, signing, purchase order and/or any other form, this proposal becomes a contract of sale. The prices, specifications, limited warranties, all terms and conditions are subject and satisfactory and are hereby accepted. Capital Coating, Inc. is authorized to do the work as specified in the proposal. Payment will be made as outlined therein. Client acknowledges that an accrued finance charge of 2% per month will be imposed on all past due bills. Client also acknowledges responsibility for all reasonable attorney fees and all other charges by Capital Coating, Inc. incurred in enforcing this agreement. This contract shall be governed by the laws of the Commonwealth of Pennsylvania.