STANDARD TERMS AND CONDITIONS
Pro Services, Inc.’s quote and work is expressly conditioned upon these Terms and Conditions. Performance of any work by Pro Services, Inc. is deemed by the parties to be acceptance of these Terms and Conditions to the exclusion of all others.
1. All Terms and Conditions are as follows except as specifically noted on the face of Pro Services, Inc.’s quote.
2. Pro Services, Inc. reserves the right to amend its quote at any time if it discovers a mistake resulting in a change in value of more than 10%. Both parties agree to disclose any such mistake immediately upon a reasonable belief that a mistake was made.
DELAYS AND PERFORMANCE
3. No liability shall result from delay in performance or non-performance of this Agreement directly or indirectly caused by fire, explosion, accidents, flood, labor trouble or shortage, war, act of regulation of any government, inability to obtain suitable material, equipment, fuel, power or transportation or act of God; or arising from contingencies, happenings, or causes beyond the control of the parties. Portions of the work so affected by any such circumstances may be eliminated from this order without liability; however, this agreement shall otherwise remain unaffected.
4. Payment is due within 30 days of the date of Pro Service, Inc.’s invoice. Payments received beyond that period are subject to late fees of five percent of the invoice amount, plus interest at the rate of ten percent per year. Should Pro Services, Inc. prevail in any collection action to recover for the failure to make payment in accordance with the parties’ agreement, then Pro Services, Inc. shall be paid all costs and all attorney’s fees actually incurred in connection with such action or any appeal therefrom regardless of any otherwise applicable court schedule used in connection with the determination thereof.
NON-WAIVER-CONFLICTING TERMS AND CONDITIONS
5. Any failure at any time by Pro Services, Inc. to enforce any provision hereof shall not constitute a waiver of such provision nor prejudice the right of Pro Services, Inc. to enforce such provisions at any subsequent time. In the event of any conflict between terms and conditions, these terms and conditions shall govern, irrespective of whether these terms and conditions are accepted by a written acknowledgment, by implication, or acceptance and payment for work performed, and any terms and conditions inconsistent with those herein stated herein are expressly waived.
6. Pro Services, Inc. shall be entitled to additional compensation for any modifications and/or changes to the work requested (orally or in writing) or made necessary by site conditions. Upon the discovery of a condition giving rise to a change, or the receipt of some oral or written change order for work constituting a reasonably contemplated change to this order, Pro Services, Inc. shall make reasonable efforts to comply with that change and overcome the conditions necessitating the change, in exchange for compensation for the change and/or condition and an extension of any completion deadline or milestone date reasonably necessary. The above notwithstanding, Pro Services, Inc.’s performance of any change in its scope of work without a written change order, or its performance notwithstanding any site condition without receipt of a change order, shall not constitute a waiver of its entitlement to additional compensation.
CANCELLATIONS, STOPWORK ORDERS
7. Cancellations of this order will be accepted only in writing and will be subject to cancellation charges which will include full compensation for work performed as of the date of cancellation, including all labor performed and materials purchased by Pro Services, Inc. if they cannot be returned, plus any restocking fees and other costs incurred by Pro Services, Inc. as a result of the cancellation.
(a) Pro Services, Inc. warrants that all Products and Services furnished under this contract shall be free from defects due to faulty workmanship, installation, or material for the period of twelve (12) months from the date of delivery and/or installation.
(b) Pro Services, Inc. neither expressly nor impliedly warrants against defects in design, workmanship and material of parts or materials supplied by others and utilized by Pro Services, Inc. in such Products and Services. Pro Services, Inc. shall extend (insofar as it is assignable) the benefits of any express written warranties given to Pro Services, Inc. by such manufacturer or other vendors. Pro Services, Inc. shall have no obligation to process any warranty claim against such manufacturer and supplier.
(c) Pro Services, Inc. neither expressly nor impliedly warrants, or makes any representation as to service life of the Products because conditions of usage and experienced service life are neither within the control nor knowledge of Pro Services, Inc.
(d) The obligations and liabilities of Pro Services, Inc. under this Warranty are expressly limited to the replacement or the repair by Pro Services, Inc. of such Products or Services.
(e) THE WARRANTIES PROVIDED IN THIS ARTICLE, AND THE OBLIGATIONS AND LIABILITIES OF PRO SERVICE, INC. HEREUNDER, AND THE RIGHTS AND REMEDIES HEREUNDER ARE EXCLUSIVE. PRO SERVICES, INC. HEREBY DISCLAIMS, AND SAME ARE DEEMED WAIVED, ALL OTHER WARRANTIES AND LIABILITIES OF PRO SERVICES, INC. AND ALL CLAIMS AND REMEDIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT IN ANY PRODUCT OR SERVICE, INCLUDING, WITHOUT LIMITATION, ANY (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE OR FOR A PARTICULAR PURPOSE, (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE, (C) RECOVERY BASED UPON TORT, WHETHER OR NOT ARISING FROM PRO SERVICES, INC.’S NEGLIGENCE, AND (D) ANY RECOVERY BASED UPON DAMAGED PROPERTY, OR OTHERWISE BASED UPON LOSS OF USE OR PROFIT OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES. THIS WARRANTY SHALL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY PRO SERVICES, INC. IN THE EVENT THAT ANY PROVISION HEREOF SHOULD FOR ANY REASON BE HELD INEFFECTIVE, THE REMAINDER OF THIS WARRANTY SHALL REMAIN IN FULL FORCE AND EFFECT.
(f) Pro Services makes no warranty with respect to existing or owner supplied equipment, machinery, components, parts or work not provided by Pro Services, Inc. Any existing condition encountered during Pro Services, Inc.’s work shall be treated as a change for which Pro Services, Inc. shall be entitled to additional compensation if it proceeds to repair or replace any existing condition beyond the scope of the parties’ agreement. The completion of Pro Services, Inc.’s work does not create any warranty with respect to pre-existing equipment, machinery, components or parts.
EXTENT OF LIABILITY
9. Pro Services, Inc. will not be liable for liquidated, collateral, indirect, incidental, consequential or special damages, including loss of profits or loss of use, and the aggregate total liability of any damages shall in no event exceed its contract price of the Product or Service giving rise to the claim (or claims) of liability, whether resulting from delays in delivery or performance, breach of warranty, claims of negligent manufacturing or installation, patent or copyright infringement, or otherwise.
APPLICABLE LAW AND VENUE
10. This order shall be governed by the laws of Michigan, except as to any rules governing conflicts of law. Any dispute relating to this agreement shall be brought exclusively in the Circuit Court for the County of Oakland, Michigan.