ADDITIONAL TERMS AND CONDITIONS TO QUOTATION/ORDER FORM
“Customer” means the entity in the Bill To section of the Quotation/Order form.
“Hunter” means Hunter Fan Company or its industrial division, Hunter Industrial.
- Services. Hunter shall provide the installation services (the “Services”) set forth in the Quotation/Order form and Customer shall pay Hunter for the Services, subject to the terms and conditions of the Quotation/Order form, as well as the terms and conditions specified in in this document (Additional Terms and Conditions to Quotation/Order Form) and its Appendix A. In the event of any ambiguity or conflict between the terms of the Quotation/Order form and the terms in this document, the terms of this document shall control. The Quotation/Order form and this document, together with any Appendices, constitute the sole and entire agreement of the parties (hereinafter, “the Agreement”) and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Hunter’s acceptance of any offer of Customer is expressly limited to the terms and conditions of this Agreement. Without limiting the foregoing provisions: (a) Hunter specifically rejects any additional or different terms and conditions proposed by Customer, including those contained in Customer’s purchase order or acknowledgement form, unless such terms and conditions are memorialized in this Agreement; (b) the terms and conditions of this Agreement prevail over any of Customer's general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms; (c) provision of Services to Customer does not constitute acceptance of any of Customer's terms and conditions not memorialized in this Agreement, and does not serve to modify or amend these terms.
- Payment Terms. Customer shall pay invoices within 30 days from the date on the Hunter invoice, unless otherwise agreed in writing between the parties. Amounts not paid when due shall be subject to interest at the rate of one and one-half percent per month or, if less, the maximum rate permitted by law. Customer shall reimburse Hunter for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys' fees and expenses. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Hunter's income, revenues, gross receipts, personnel, or real or personal property or other assets.
- Customer Obligations. Customer is solely responsible for (a) preparing the services site for each Hunter product so that the Services can be performed as scheduled, in a safe and secure manner, and in conformance with all applicable laws or regulations; (b) ordering and having available the correct products and associated accessories needed for Hunter to perform the Services; (c) rescheduling at least 72 hours prior to the scheduled date/time should the Customer need to reschedule the Services; and (d) not delaying Hunter access to the services site upon arrival at the site including not delaying because of extended safety briefings. Customer is solely responsible for all costs and expenses associated with Hunter’s delay or inability to perform the Services resulting from Customer’s failure to comply with this Section 3 and any Customer obligations specified in Appendix A.
- Performance Dates. Hunter shall use reasonable efforts to meet any performance dates communicated to Customer. Any such dates, however, shall be estimates only.
- Limited Warranty. Hunter warrants that it shall perform the Services (a) using personnel of required skill, experience, and qualifications; and (b) in a workmanlike and professional manner in accordance with generally recognized industry standards for similar services. HUNTER MAKES NO WARRANTIES EXCEPT FOR THOSE SET OUT ABOVE AND DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Hunter shall not be liable for a breach of this warranty Section unless Customer gives written notice of defective Services to Hunter within 30 days of the time when Customer discovered or should have discovered that the Services were defective. Hunter's sole and exclusive liability and Customer's sole and exclusive remedy for breach of the limited warranty set out in this Section shall be, at Hunter’s sole discretion, either: (i) reperformance of the affected Services; or (ii) credit or refund the price of such Services at the pro rata contract rate.
- Indemnification. Hunter shall indemnify, defend, and hold Customer, its officers, directors, employees, affiliates, and successors, harmless from and against any and all third-party claims based on actual or alleged losses, liabilities, claims, actions, judgments, settlements, penalties, fines, damages of any kind, and expenses (including reasonable attorney’s fees) resulting from Hunter’s negligence, willful misconduct, or breach of this Agreement. In such an event, Hunter’s liability shall not extend to liability or fault for more than the percentage of fault and/or damages attributable to Hunter. For any third-party claim as to which Hunter assumes the defense under this provision, Hunter shall not enter into any settlement involving an admission or finding of fault or payment of damages on the part of Customer without Customer's prior written consent, which Customer shall not unreasonably withhold, condition, or delay. Customer shall provide Hunter prompt notice of any potential or actual third-party claims subject to this Section. Following notification, Hunter shall have complete control of the investigation of and defense of such claim under this Section.
- Limitation of Liability.
(a) IN NO EVENT SHALL HUNTER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING ANY FORM OF NEGLIGENCE OR INTENTIONAL MISCONDUCT), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT HUNTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE.
(b) Except for liability for indemnification under Section 6, and subject to the limitations of recovery for breach of warranty set forth in Section 5, IN NO EVENT SHALL HUNTER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING ANY FORM OF NEGLIGENCE OR INTENTIONAL MISCONDUCT) OR OTHERWISE, EXCEED TWO TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO HUNTER PURSUANT TO THIS AGREEMENT.
- Insurance. During the term of this Agreement, and for a period of one year thereafter, Hunter shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, (a) worker’s compensation in amounts statutorily required, (b) insurance with respect to the operation of all motor vehicles used in the performance of Services, with bodily injury liability and property damage coverage of at least $l,000,000 combined single limit, and (c) commercial general liability insurance in a sum of no less than $1,000,000 with financially sound and reputable insurers. Upon Customer's request, Hunter shall provide Customer with a certificate of insurance from Hunter's insurer evidencing the insurance coverage specified in these terms.
- Compliance with Law. Hunter shall comply with all applicable laws, regulations, and ordinances and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
- Independent Contractor. The details of the method and manner for performance of the Services by Hunter shall be under its own control, Customer being interested only in the results thereof. Hunter shall be solely responsible for supervising, controlling, and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Hunter is for all purposes hereunder an independent contractor and in no event will Hunter be considered an agent or employee of Customer or any of its subsidiaries or affiliates for any purpose.
- General. Each party shall deliver all communications in writing either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and addressed to the other party at the addresses set forth in the Quotation/Order form.
This Agreement and all matters arising out of or relating to this Agreement, including tort and statutory claims are governed by, and construed in accordance with, the laws of Tennessee, without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. Either party shall institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts in each case located in Shelby County, Tennessee. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE AFOREMENTIONED COURTS; AND (B) WAIVES ANY OBJECTION TO THAT CHOICE OF FORUM.
The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. The parties may not amend this Agreement except by written instrument signed by the parties. No waiver of any right, remedy, power, or privilege under this Agreement ("Right(s)") is effective unless contained in a writing signed by the party charged with such waiver. No failure to exercise, or delay in exercising, any Right operates as a waiver thereof. No single or partial exercise of any Right precludes any other or further exercise thereof or the exercise of any other Right.
Neither party may directly or indirectly assign, transfer, or delegate any of or all of its rights or obligations under this Agreement, voluntarily or involuntarily, without the prior written consent of the other party. An assignment or delegation in violation of this Section shall be null and void. Notwithstanding the foregoing, Hunter may subcontract the Services and Hunter shall be responsible and liable for the acts and omissions of each subcontractor (including its employees) to the same extent as if such acts or omissions were by Hunter or Hunter’s employees. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Except for the parties, their successors and permitted assigns, there are no third-party beneficiaries under this Agreement.
Any provision that, in order to give proper effect to its intent, should survive the expiration or termination of this Agreement, will survive such expiration or termination. This Agreement may be executed simultaneously in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
- Effective Date. This Agreement is effective as of the date the Quotation/Order form is signed by the last party to sign it, or the date the Services started, whichever date is earlier.
- Term & Termination. This Agreement shall commence as of the Effective Date and shall continue until the completion of the Services and the associated fees have been fully paid by Customer. Notwithstanding the foregoing, either party may terminate this Agreement at any time prior to 72 hours before the scheduled date/time for the performance of the Services.
Appendix A – Installation Services
Exclusions: In addition to any exclusions listed in the installation package, the Customer is responsible for the following if not specifically included in the installation package selected by Customer: preparing the installation site with appropriate electricity and structural support for operating and mounting the Hunter product, removing or relocating any obstacles in the Hunter product’s working diameter, altering the existing roof insulation as needed for product mounting, rework of existing utilities to place them into compliance with the applicable code, costs associated with electrical or fire permits, and structural engineer review and approval of non-standard mounting methods. Customer is also solely responsible for fire alarm tie-in at the fire control panel and any Customer required site safety training programs for the installers.