COLONIAL SYSTEMS, INC.
CONTRACT TERMS AND CONDITIONS
For purposes of this document, the following terms are deemed to have the following corresponding meanings –
- “We”, “our” and “us” mean Colonial Systems, Inc., 326 Ballardvale Street, Suite 200, Wilmington, MA 01887, our officers, directors, agents, servants and employees.
- “You,” “your” and “customer” mean the person, corporation or other entity, his/its/their agents, servants, employees or representatives with whom we contract for the services described herein or on whose behalf the services are performed.
- “Job site” means the physical location where we are to perform our installation services.
- “Contract” means any and all agreements between us and you for our performance at the job site, specifically including these Terms and Conditions, together with any attachments thereto.
- “Order” means the warehousing, transportation and installation services we provide to you following your approval and acceptance of our quote concerning the furniture, fixtures and associated goods and products for any single job site.
- “Goods and products” mean any furniture, fixtures, appliances and related articles we receive, store, warehouse, transport, load, unload, assemble, disassemble, pack, unpack, install or in any other manner handle on your behalf.
1. ACCEPTANCE AND AGREEMENT
By accepting our work and services described herein, you are agreeing to these Terms and Conditions whether you have signed a copy of this document or not. If you object to any terms or provisions described herein, you must call us immediately at (978) 657-6508.
2. CONDITION OF JOB SITE
Prior to the commencement of work by us and during the term of our services, it shall be your responsibility, at your sole cost and expense, that (i) the job site shall be in good, clean, clear condition, complete (except for our work contracted for herein), ready for us to perform in accordance with this contract and free from interference, (ii) customary utilities are reasonably available to us including electricity, water, heat and air conditioning, (iii) we have exclusive access to and use of a dedicated working elevator, loading/offloading and staging areas at the job site, free from interference, (iv) we have unrestricted access to the job site including security clearances passes and (v) you provide us with a 24-hour emergency contact telephone number(s).
3. CONDITION OF PRODUCT, PLANS, ETC.
Unless other prior arrangements are made with our written consent, (i) all product to be installed by us shall be delivered to the job site (at no cost to us) on or before the commencement of our work complete and in good working order free from all defects and ready for installation by us (Note: We do not “accept” delivery of or inventory product. It will be necessary for you to have a representative at the job site to take delivery and receipt of product and to insure each delivery is complete), (ii) all material and hardware necessary for complete installation shall be provided to us (at no cost to us) at the job site no later than the commencement of work by us, (iii) all product shall be of proper fit and size ready for installation by us at the job site and (iv) you must provide us with accurate drawings, plans, specifications, renderings, schematics, blue-prints, and/or similar such documents as we may request (“Plans”) to enable us to perform our services. You acknowledge that we may have relied upon Plans in agreeing to our fee and that to the extent the Plans may be inaccurate, we reserve the right to adjust our fee accordingly. Our services shall be strictly limited to what is agreed to in writing in the contract.
4. OTHER JOB SITE SERVICES
You agree that hoisting charges, field cutting and/or modifications to product and other services not specifically agreed to by us shall be in addition to the fee quoted by us and shall be billed for by us at our then customary rates for such services and equipment and due upon receipt.
We are not responsible for delays beyond our reasonable control such as, but not limited to, late deliveries, out of service hoists or elevators, construction delays, missing or nonconforming materials, acts of God, severe inclement weather, work stoppages, strikes, supply shortages, power outages or other similar events. Any delays caused by your failure to comply with the terms of the contract (including these Terms and Conditions) shall be considered a default and may incur additional costs and charges.
You are in default of the contract if you (a) fail to perform any of the obligations herein or therein, (b) fail to make payment(s) when due and in full, (c) fail to cooperate with us in performing our work pursuant to the contract or (d) become a debtor in any insolvency or bankruptcy proceeding or make an assignment for the benefit of creditors. Our failure to seek redress for violation or default of, or to insist upon the strict performance of, any term or condition of this contract shall not be deemed a waiver of such violation or default nor prevent a subsequent act, which would have originally constituted a violation or default, from having all the force and effect of an original violation or default.
7. REMEDIES IN THE EVENT OF YOUR DEFAULT
If you are in default, we shall be entitled to the following, non-exclusive remedies:
- We may stop work immediately.
- We may terminate the contract by giving you three (3) days notice of our intention to terminate, during which time you have an opportunity to cure any default to our satisfaction;
- You agree to forthwith pay us for any goods or services, which we have provided or performed.
- You agree to pay us the total value of the contract less any amounts for which we are not already committed to pay.
- You agree to pay us our costs and expenses incurred, including reasonable attorney’s fees, in collecting any amounts owed under the contract or that we incur in enforcing any provision hereof or thereof.
- Additionally, we have the right to seek any other relief or damages to the fullest extent provided by law.
8. ADDITIONAL COSTS
You agree to reimburse us for any additional costs, charges and expenses we incur as a result of any default, delay or any change order including, without limitation, overtime, union wages, additional hires, additional time and materials, fuel, transportation, restocking fees and returned item fees. We may, in our discretion, demand advance payment of such additional costs, charges and expenses prior to commencing or continuing work as the case may be.
9. MATERIALMEN’S, WAREHOUSEMAN’S AND CARRIER’S LIENS
We retain all rights afforded us under applicable laws concerning materialmens,’ warehouseman’s or carrier’s liens or similar type laws.
You consent to allow us to enter the job site for the purpose of our performance under the terms hereof and represent and warrant that all conditions to permit our access have been satisfied. You agree to keep the job site in such a condition as will allow us to perform our work unimpaired and without interference.
We maintain general liability insurance and worker’s compensation insurance as required by law. Upon request, we will provide you, upon request, with a copy of the declarations page of our policies. You understand that our insurance policies may not cover all circumstances under which a loss may occur. You understand that we are not an insurer or an insurance company nor do we provide any insurance coverage for you. We provide insurance only for ourselves. You must obtain and maintain insurance of your own covering personal injury and property loss or damage on or to the job site or property of which the job site is a part or to any product.
12. NON-CARGO CLAIMS; FILING REQUIREMENTS
- As a condition precedent to recovery on any claim against us for breach of this contract, other than for cargo or transit damage to property or products we deliver or install, claims must be filed in writing with us within ninety (90) days after the completion of our services, must include sufficient information describing the services and claim details and must set forth a specified or determinable amount of money claimed.
- Lawsuits against us for any non-cargo claims hereunder must be filed no later than one (1) year from the date we give you written notice that we disallow or deny your claim or any part or parts of the claim specified in the in the notice.
- Where non-cargo claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, we will not be liable, and such claims will not be paid.
13. CARGO/PROPERTY/PRODUCT LOSS AND DAMAGE CLAIMS; FILING REQUIREMENTS
- As a condition precedent to recovery of claims for loss or damage to cargo, property or products we store, deliver or install, you must file with us, in writing, all such claims within nine (9) months after the delivery of the cargo, property or product.
- The claim-filing regulations of the Federal Motor Carrier Safety Administration at 49 C.F.R. §370, et seq. are hereby adopted and incorporated herein by reference and shall govern all cargo/property/product loss and damage claims against us on products we store, deliver or install.
- Lawsuits for all cargo/property/product damage claims hereunder on any products we store, deliver or install must be filed against us no later than two (2) years and one day from the date we give you written notice that we have disallowed the claim or any part or parts of the claim specified in the in the notice.
- Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, we shall not be liable, and such claims will not be paid.
14. LIMITATIONS OF LIABILITY
Our liability for loss or damage to your goods or products or for any loss or damage resulting from our services, work, products provided or in any manner related to the contract or our services is limited, depending on goods, products and services we provide, as follows:
- New goods and products while in storage: With respect to new goods and products while in storage at our warehouse awaiting delivery and installation at a jobsite, our liability is strictly limited to (i) the sum of $100,000 (One Hundred Thousand Dollars) or (ii) the sum of all payments made by you to us pursuant to the contract, whichever is less, unless you declare a higher value for the goods at or before the time they arrive at our warehouse and you agree to pay us an added valuation charge as described in Section 14.e.
- New goods and products at job site: With respect to new goods and products located at a job site for installation, our liability is strictly limited to (i) the sum of $250,000 (Two Hundred Fifty Thousand Dollars) or (ii) the sum of all payments made by you to us pursuant to the contract, whichever is less, unless you declare a higher value for the goods at or before the time they arrive at the job site for installation and you agree to pay us an added valuation charge as described in Section 14.e.
- New goods and products while in transit, loading or unloading: With respect to new goods and products while in transit to or from a job site for installation, or during loading or unloading of the goods for transit to or installation at a jobsite, our liability is strictly limited to (i) the sum of $150,000 (One Hundred Fifty Thousand Dollars) or (ii) the sum of all payments made by you to us pursuant to the contract, whichever is less, unless you declare a higher value for the goods at or before the time they are loaded into a vehicle for transit to the jobsite and you agree to pay us an added valuation charge as described in Section 14.e.
- Goods and products while in long term storage (“asset management”): Goods and products while in long term storage, i.e., stored indefinitely at our warehouse, will be subject to the terms and limitations in our warehouse receipt, as shown in Appendix B hereto , under which our liability is strictly limited to $0.60 (Sixty Cents) per pound, per article, or $2,000 for the entire lot of goods unless you declare a higher value for the goods at or before the time we receive them for storage and you agree to pay us an added valuation charge as described in Section 14. e below. With respect to goods and products in long term storage, we will not be liable for loss or damage resulting from war, insurrection, labor trouble, acts of God, acts of the public enemy, riots, weather, traffic, elevator service, inherent vice, moths, vermin or other insects, rust, water, changes in temperature, mold, mildew, fumigation, deterioration, dampness of atmosphere, earthquake, leakage, heat, or furniture assembled by you commonly referred to as “ready to assemble” or “knocked down” (“KD”) furniture, documents, stamps, securities, specie, jewelry, or other articles of high or unusual value, or for loss or damage with regard to the mechanical functions of your goods such as radios, televisions, stereo sets, computers, refrigerators, air conditioners or other instruments or appliances.
- You may obtain a higher limit of liability for your goods and products by declaring a higher value and paying us additional valuation charges therefor. Please call us at (978) 657-6508 to obtain a quote for such additional valuation charges. Note that we do not sell insurance and a declaration of additional valuation is not insurance.
15. NO SPECIAL DAMAGES
Under no circumstances will we be liable for any special, incidental, punitive or consequential damages, whether direct or indirect, including but not limited to claimed loss of use, sales, delay, interest, lost profit, loss of business, attorney’s fees, costs or any other forms of special, incidental, punitive or consequential damages you may claim or incur under this contract. All loss or damage claims related to our performance of any and all services are subject to and may not exceed the limitations described in Section 14 above.
You agree to defend, indemnify and hold us and our officers, directors, agents, servants employees, affiliated and associated companies, and their respective agents, officers, directors, and employees harmless from and against all liabilities, losses, costs, claims (including claims for personal injury or death) and expenses, including reasonable attorneys’ fees and costs of defense (hereafter “Liabilities”), we incur that arise from claims by third parties against us as a result of your negligent acts or omissions or your performance or failure to properly perform your obligations under the contract. You will not have any obligation under this paragraph to defend, indemnify or hold us harmless from any liabilities caused in whole or in part by our negligent acts or omissions. The provisions of this paragraph shall survive the termination or cancellation of this contract.
17. WAIVER OF SUBROGATION
You understand and agree that our prices and rates for services do not include insurance for you or other compensation for loss, damage or delay other than as expressly provided herein and limited hereby. Accordingly, you agree that in the event you desire insurance coverage for any services, risks, loss or damage, you will obtain your own insurance and that said insurance will contain a waiver of subrogation provision waiving any subrogation rights for and on behalf of such insurance company against us. In the event you fail to obtain such waiver of subrogation, you, at your expense, will defend, indemnify and hold us harmless with respect to claims you or any third parties acting as your subrogee may make against us.
18. BILLS OF LADING
In the event any bills of lading or other documents related to the work, products or services we agree to perform under the contract are issued by or to us or received by us from any third party, such bills of lading or other documents shall function as receipts only and shall be superseded by the terms set forth in this contract.
19. PAYMENT DUE DATES AND INTEREST
Payment for our services is due strictly on or before the dates specified and agreed to. You agree to pay us interest at the rate of 1½% per month (18% Annual Percentage Rate (A.P.R.)) for all amounts past due.
You agree to submit to the exclusive jurisdiction of the Federal and State courts of the Commonwealth of Massachusetts, for the purpose of any suit, action, proceeding or judgment relating to or arising out of this contract and/or the work contemplated hereby and thereby. The contract shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without reference to the choice of law principles.
21. LIMITED WARRANTY
WE WARRANT THAT OUR LABOR WILL BE FREE FROM DEFECTS IN WORKMANSHIP FOR A PERIOD OF NINETY (90) DAYS IMMEDIATELY FOLLOWING THE COMPLETION OF ANY SUCH WORK, PROVIDED HOWEVER, THAT ALL PAYMENTS FOR SUCH WORK MUST FIRST HAVE BEEN PAID FOR IN FULL. WE MUST RECEIVE WRITTEN NOTICE OF SUCH ALLEGED DEFECT WITHIN SUCH NINETY (90) DAY PERIOD. WE DO NOT WARRANT PRODUCT OR MATERIALS. PRODUCT AND MATERIALS ARE COVERED UNDER SEPARATE MANUFACTURERS’ WARRANTIES AND YOU ARE REFERRED TO THOSE WARRANTIES FOR FURTHER DETAILS. WE DO NOT WARRANT AND SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE CAUSED BY OR RESULTING FROM MOLD, MILDEW, FIRE OR OTHER CASUALTY, WATER, INSECTS OR PESTS, PRE-EXISTING CONDITIONS, USE BEYOND NORMAL WEAR AND TEAR, MISUSE OR ABUSE OR OTHER CIRCUMSTANCES BEYOND OUR CONTROL. OUR OBLIGATION UNDER THIS WARRANTY SHALL STRICTLY BE LIMITED TO REPAIR OR REPLACEMENT (AT OUR OPTION) OF OUR DEFECTIVE WORKMANSHIP. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED. WE DISCLAIM ALL WARRANTIES (EXCEPT AS EXPRESSLY STATED HEREIN) EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
22. CANCELLATION AND CHANGE ORDERS
The contract is not subject to cancellation. Change Orders must be in writing and signed by you and us. We reserve the right to reject any request for a Change Order if, in our opinion, we cannot reasonably accommodate the requested change. All Change Orders are subject to our availability and may incur additional costs, charges and delays. We may require advance payment for any Change Orders.
23. ENTIRE AGREEMENT
The contract (including this document), together with any related attachments specifically agreed to by us, represents the entire agreement of the parties. If there is any conflict between the contract and any other document, the contract will govern, whether such other document is prior or subsequent to the contract. It is mutually understood and agreed that any representation, promise, condition, inducement or warranty, express or implied, (including warranty of merchantability or fitness for a particular purpose) not included in writing in the contract shall not be binding upon any party and are disclaimed by us. The contract may not be altered, modified or otherwise changed at any time except by a written document duly executed by authorized representatives of each party. Any prior oral or written agreements between the parties are hereby canceled.
24. FORCE MAJEURE
Neither party hereto shall be liable to the other for default in the performance of any of the terms and provisions of this contract if caused by fire, strikes or labor disputes, riot, war, Act of God, governmental order or regulation, or other similar contingency beyond the reasonable control of the respective parties.
If any phrase, clause, sentence, or other provision contained in this contract violates any applicable statute, ordinance, rule or law, such phrase, clause, sentence or provision shall be ineffective to the extent of such violations without invalidating any other provision of this contract.
The use of headings is for ease of reference only and shall not constitute a part of the contract.