Engineered Framing Systems Terms and Conditions:
1. Contractor shall pay each invoice within 30 days from the date of the invoice. Each unpaid invoice or unpaid portion thereof after 30 days shall bear an administrative fee of 2% per month or fraction of a month that such amount remains unpaid.
2. EFS will submit progress billing at the completion of each stage of the project or monthly until completion of our scope of work. The general contractor may not condition payment to EFS upon payment by owner to the general contractor, but shall pay the invoices regardless of payment by the owner.
3. EFS’ has based its price on one move-in and no pull-off. If, through no fault of EFS, EFS’ commencement of work is delayed or if EFS’ has one or more pull-offs and subsequent move-ins, the general contractor shall provide and pay for on-site storage of materials. In addition, general contractor shall pay $2,500 for each pull-off. Examples of delays to commencement of work and circumstances causing a pull-off that are not the fault of EFS include, without limitation, a) the general contractor or other subcontractors failing to complete tasks on a timely basis that are necessary to be completed before EFS can commence its own tasks; b) failure of the general contractor or other subcontractors to remove material or equipment in a manner to allow EFS to commence its tasks; c) failure of the General Contractor to provide adequate access or power to the specific construction area where EFS is to perform its tasks; d) failure of general contractor or owner to respond in a timely manner to a request for information; e) obstacles blocking access to the work area, such as trenches, barriers, equipment and stacking or storage of other materials; and f) other occurrences that interfere with EFS in fulfilling the agreement.
4. If: a) the contractor requests EFS to complete work in a different order than planned by EFS, b) the contractor requests EFS to stop work on one task and commence another task, or c) EFS is hindered in completing a particular task partially completed (e.g., a wall or partition is, for example, 85% completed, but because of factors outside the control of EFS, the remaining 15% cannot be completed without interruption) and the contractor requests that EFS commences another task (e.g., commence building another wall without finishing the current wall), then contractor shall pay a sum of $______ for each such request. Such sum shall be billed with the next monthly invoice that EFS sends to contractor.
5. EFS shall not be liable for any back-charge for not maintaining the anticipated schedule of work when completion of work is delayed for any factor not within control of EFS, including the circumstances described in the foregoing paragraphs.
6. If the general contractor accelerates the schedule of work in this agreement, the general contractor shall pay for premium time at $40 per hour per worker.
7. EFS has based its bid at "light commercial" framing wage. If general contractor requires more intensive work, then general contractor shall pay EFS normal charges for such different work.
8. The general contractor may apply a maximum retention of 5% of the total price. Upon completion of the work, EFS shall notify the contractor and the general contractor shall request an inspection by the Building Department. The general contractor shall conduct its own inspection within 10 days of such notification of completion by EFS. If the general contractor finds a deficiency, general contractor shall immediately notify EFS. If EFS agrees with the notice of deficiency, EFS shall immediately correct such deficiency. If the general contractor does not conduct the inspection and/or notify EFS of any deficiency within 10 days, the general contractor shall be deemed to have accepted the work. The general contractor shall pay the full retention within 15 days of the Building Department inspection of EFS’ work. If the Building Department does not inspect the work within 30 days after request by the contractor, the general contractor shall immediately pay the full retention to EFS.
9. The price quote is contingent upon general contractor’s acceptance of materials at the job site within 120 days of the date of this agreement.
10. EFS shall have the right to pull off the job without default or consequence to EFS if contractor has not paid any invoice from EFS in a timely manner. If EFS pulls off a job and contractor subsequently pays and EFS recommences the job, EFS shall be entitled to the pull-off fee set forth above.
11. These terms and condition shall become part of the contract between EFS and the general contractor.
12. EFS will commence its portion of work within four-to-five-weeks after the later of the approval of shop drawings or the completion of slab.
13. EFS shall not responsible for damage to installed materials due to inclement weather – (see EFS “Wet Weather Policy”).
14. General contractor shall erect a roof system from the completed slab, with minimum access of 10' x 14' with ramps sufficient for equipment. General contractor shall supply power to within 50 feet of work area. EFS shall remove debris to a bin supplied by the general contractor.
15. General contractor shall supply to EFS three complete sets of "For Construction" drawings at the commencement of this agreement.
16. EFS shall not include a broom sweep.
17. General contractor may submit change orders at any time in accordance with accepted construction industry practices, modified as follows: a) general contractor shall supply EFS at the beginning of the work a supply of the general contractor’s change order forms. b) General contractor shall designate at the beginning of the work the persons who have authority to approve change orders on behalf of the general contractor. The general contractor shall designate at least two people for each level of approval. c) When the general contractor submits a change order, EFS and the general contractor’s representative shall immediately complete the general contractor’s change order form and sign it. d) EFS shall then immediately submit the change order in person at the job site or by fax to the general contractor’s representative for approval, and the general contractor’s representative shall immediately approve or disapprove the change order. e) EFS shall begin the change order only after receiving approval from the person designated by the general contractor. EFS shall be justified in not commencing work on a change order until the general contractor’s representative has approved the change order.
18. Due to volatility of the lumber market, the price is for acceptance within 5 days from date of quotation.
19. EFS shall not accept any variance from terms herein unless EFS shall have approved in advance in writing such variance.
20. EFS acceptance of the agreement is expressly conditioned on general contractor’s acceptance of the terms and conditions set forth above in this “EFS TERMS AND CONDITIONS”. GENERAL CONTRACTOR SHALL BE DEEMED TO HAVE AGREED TO SUCH TERMS AND CONDITIONS, AND, IN RELIANCE THEREON, EFS SHALL UNDERTAKE WORK UNDER THE AGREEMENT UNLESS GENERAL CONTRACTOR GIVES WRITTEN NOTICE OF ANY OBJECTION TO EFS TERMS AND CONDITIONS WITHIN 10 DAYS FROM THE DATE SHOWN BELOW.
21. Warranties. As to its products at the time of delivery to the job site, EFS warrants good title, freedom from defects in material and workmanship and conformance to its standard specifications and those stated in the agreement. EFS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. THE MATERIALS ARE SOLD AS IS AND WITH ALL FAULTS. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION OF THE GOODS AND MATERIALS PROVIDED ON THE FACE OF THIS CONTRACT. EFS DISCLAIMS ANY WARRANTY OF ANY OTHER KIND, INCLUDING ANY WARRANTY THAT THE GOODS AND MATERIALS ARE MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE.
22. General contractor acknowledges that before commencement of the work, EFS offered general contractor an opportunity to examine the materials as fully as the general contractor wished and demanded that the general contractor inspect them. General contractor acknowledges that the materials were freely accessible and that the general contractor inspected them.
23. LIMITATION OF LIABILITY. EFS'S EXCLUSIVE LIABILITY FOR THE BREACH OF ANY OF ITS WARRANTIES SHALL BE TO REPLACE NONCONFORMING MATERIAL AT THE ORIGINAL POINT OF DELIVERY, TO REPAIR NONCONFORMING MATERIALS OR TO REFUND GENERAL CONTRACTORS PURCHASE PRICE FOR THE NONCONFORMING MATERIALS. EFS’S LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF OR RESULTING FROM OR IN ANY WAY CONNECTED WITH THIS AGREEMENT SHALL NOT EXCEED GENERAL CONTRACTOR’S PRICE FOR THE PARTICULAR MATERIALS OR SERVICE UPON WHICH SUCH LIABILITY IS BASED, REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE. IN NO EVENT SHALL EFS BE LIABLE TO GENERAL CONTRACTOR OR OWNER FOR LOSS OF PROFITS OR REVENUE OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES.
24. Miscellaneous. (a) Notices. Any notice, payment, demand, offer, or communication required or permitted to be given by any provision of this Agreement shall be deemed to have been delivered and given for all purposes (i) if it is actually received by personal or electronic tender (such as, e.g., facsimile transmission or email transmission) by the person to whom it was directed, or (ii) if sent by registered or certified mail, postage and charges prepaid, addressed to the party at the address set forth below next to the signature of such party, or to such other address as such party may from time to time specify by written notice to the other party. Any notice shall be deemed given as of the earlier of the date actually received or the date on which it was deposited in a regularly maintained depository for the deposit of United States mail, properly addressed with postage prepaid. (b) Captions. All captions contained in this Agreement are for reference only and do not interpret, define, or limit the scope, extent, or intent of this Agreement or any of its provisions. (c) California Law. The laws of the State of California shall govern this Agreement as if all parties resided in the State of California and this Agreement were to be wholly performed within the State of California. The provisions of this Agreement may be specifically enforced. (d) Counterpart Execution. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which when executed and delivered shall be deemed an original, with the same effect as if all parties had executed the same counterpart. All counterparts shall be construed together and shall constitute one Agreement. Delivery of an executed counterpart of this Agreement by facsimile shall be equally effective as delivery of a manually executed counterpart of this Agreement. Delivery by facsimile shall include, without limitation, delivery via (i) fax machine transmission; (ii) computer or electronic file in PDF format with image of signed document delivered by email or by electronic storage device (flash drive, cd rom, et al), and (iii) computer or electronic file image in any format of the signed document delivered by email or by electronic storage device (flash drive, cd rom, et al). Any facsimiled or photocopied signatures shall be deemed original signatures, all of which shall be equally valid. (e) Time. Time is of the essence of this Agreement. (f) Integrated Agreement. This Agreement constitutes the entire understanding and agreement between the parties with respect to the subject matter of this Agreement, and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties; there are no agreements, understandings, restrictions, representations, or warranties other than those set forth in this Agreement. (g) Number; Gender. As used in this Agreement and when required by the context, the singular number shall include the plural and the masculine gender shall include the feminine and neuter genders and the word "person" shall include corporation, firm, partnership, individual, or other form of association. (h) No Waiver. No term or provision of this Agreement shall be waived or any breach of this Agreement excused except in writing signed by the party that is claimed to have so waived or excused. No waiver of any provision of this Agreement shall constitute a waiver of any other provision. Any consent or waiver by any party to any breach of this Agreement by the other party, whether expressed or implied, shall not constitute a consent to, waiver of, or excuse for, any other breach. The failure of any party to give notice to the other party, or to take any other step in respect of, any breach of any provision of this Agreement shall not constitute a waiver thereof. Acceptance of payment by a party after the breach of any provision of this Agreement by the other party shall not constitute a waiver thereof. (i) Amendment. This Agreement may be amended only by an instrument in writing signed by all parties which expressly refers to this Agreement and specifically states that it is intended to amend it. Furthermore, this Agreement may not be modified by an oral agreement even though supported by new consideration. Each party waives Civil Code section 1698(b), (c), and (d) to the effect that no oral agreement under any circumstance may modify this Agreement. (j) Arbitration. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity thereof, shall be finally resolved in Los Angeles, California, in accordance with the arbitration and conciliation procedures set forth in Rules of the Center for International Commercial Arbitration in force on the date of this Investment Agreement. The arbitration shall be heard and determined by three arbitrators. One party shall appoint one arbitrator. The Company shall appoint one arbitrator. The presiding arbitrator shall be selected by the two arbitrators appointed by the one party and the Company. The English language shall be used in the arbitration proceedings. The award, if any, shall be made and payable in United States dollars free from any tax or any other deduction. The substantive law of the State of California shall be applied by the arbitrators as specified in this Agreement. The award shall include interest from the date the claims were submitted to the party against whom the claims were made. The arbitrators shall also fix an appropriate rate of interest from the date of the breach or other violation to the date when the award is paid in full. In no event, however, shall the interest rate during such period be lower than the Wall Street Journal prime rate. To the extent that the rules of the Center for International Commercial Arbitration do not provide a rule for a particular circumstance, then California Code of Civil Procedure, part 3, title 9 shall apply. If however, the matter subject to arbitration is deemed to be an international commercial arbitration within the meaning of California Code of Civil Procedure Section 1297.12, then California Code of Civil Procedure, part 3, title 9.3 shall apply to the extent that the Rules of the Center for International Commercial Arbitration do not provide a rule. In any event, the parties shall have the right to take depositions and obtain discovery in accordance with California Code of Civil Procedure Section 1283.05 and Section 1283.1. For purposes of California Code of Civil Procedure Section 1281.8 (relating to the issuance by a court of provisional remedies), the Parties agree that in any provision of this Agreement relating to confidential information or the protection of intellectual property, it shall be conclusively presumed that the arbitration award to which a party may be entitled may be rendered ineffectual without an appropriate provisional remedy to which the party may otherwise be entitled. The Parties acknowledge and agree that the legal remedies available to the other party(ies) to this Agreement for redress of a violation of the covenants and agreements set forth in this Agreement would be inadequate and that the nonbreaching party(ies) shall be entitled, without posting any bond or other security, to temporary, preliminary and permanent injunctive relief, specific performance, and other equitable remedies, in addition to other remedies to which the nonbreaching party(ies) may be entitled at law or in equity. In order to protect a party's interest in real property, a party may file an action affecting the real property in order to allow the party to file a lis pendens with respect to the real property. In such case, the party shall also file an application for a stay of such action pending the conclusion of the arbitration, after which the action shall be dismissed in accordance with the outcome of the arbitration and the completion of the remedies, if any, required by such arbitration. YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. (k) Attorneys Fees. Either party to this Agreement shall be entitled to recover from the other party all reasonable costs and expenses incurred, including attorneys' fees, in successfully enforcing or defending any right arising out of this Agreement which is resisted or disputed by the other party, whether or not any proceeding or action is commenced in any court or before any agency, board, tribunal or arbitrator. (l) Force Majeure. Anything to the contrary in this Agreement notwithstanding, no party shall be liable to any other party for any loss, injury, delay, damage, or other casualty suffered or incurred by such other party hereto due to riots, storms, forces, earthquakes, floods, other phenomena of nature, explosions, embargoes, governmental or other laws and regulations, coups, rebellions, strikes, boycotts, litigation or labor disputes, tortious acts of any other person, acts of God, war, fire, explosions, accidents, power outages, fuel shortages, water shortages, terrorist acts, acts of any government or governmental agency, changes in tariffs or duties, criminal acts, transportation interruptions, communications interruptions, the failure of banks or other financial institutions to perform according to expected practices and standards, the failure or inability of any supplier or vendor to manufacture, obtain or deliver any product or service with whom a party has contracted, the death or sudden incapacity of a key employee or agent of a party, or any other cause that is beyond the reasonable control of such party hereto. Any failure or delay by either party hereto in performance of any of its obligations under this Agreement due to one or more of the foregoing causes shall not be considered as a breach of this Agreement. The doctrine of ejusdem generis is hereby rejected and waived, and shall not be applied to this Agreement. (m) Punitive Damages. Each party waives all rights which such Party might have to recover punitive or exemplary damages for the conduct of the other Party arising out of, in connection with, or related directly or indirectly to the alleged nonperformance or breach by a Party of its obligations under this Agreement or otherwise arising by operation of law. (n) Interpretation. (i) As used in this Agreement, unless the context clearly indicates otherwise: (A) words used in the singular include the plural and words in the plural include the singular; (B) reference to any Person includes such Person’s successors and assigns, but only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity; (C) reference to any gender includes the other gender; (D) whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation” or “but not limited to” or words of similar import; (E) reference to any Article, Section, Exhibit or Schedule means such Article or Section of, or such Exhibit or Schedule to, this Agreement, as the case may be, and references in any Section or definition to any clause means such clause of such Section or definition; (F) the words “herein,” “hereunder,” “hereof,” “hereto” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or other provision hereof; (G) reference to any agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and by this Agreement; (H) reference to any law (including statutes and ordinances) means such law (including all rules and regulations promulgated thereunder) as amended, modified, codified or reenacted, in whole or in part, and in effect at the time of determining compliance or applicability, and reference to any particular provision of any law shall be interpreted to include any revision of or successor to that provision regardless of how numbered or classified; (I) relative to the determination of any period of time, “from” means “from and including,” “to” means “to but excluding” and “through” means “through and including”; (J) in the event of any conflict between the provisions of the body of this Agreement and the Exhibits or Schedules hereto, the provisions of the body of this Agreement shall control; and (K) The titles to Articles and headings of Sections contained in this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of or to affect the meaning or interpretation of this Agreement.
updated July 6, 2009
