STANDARD TERMS AND CONDITIONS FOR GOODS AND SERVICES
FenceOKC’s customer (the “Customer”) agrees and authorizes Stiner Brothers LLC, d/b/a “FenceOKC.com, (collectively, “FenceOKC”) to perform fencing services, and to provide goods and materials, whether or not described in one or more proposals, scope of services, addenda, fee schedule, estimate, quote, project sketch, and purchase and work orders (collectively, the “Work”) under the following Standard Terms and Conditions for Goods and Services, which are expressly made a part of the agreement between Customer and FenceOKC (the “Agreement”), without liability for interruption of service, or incidental, special, or consequential damages:
- TERMS OF AGREEMENT — The Agreement between Customer and FenceOKC comprise these terms and conditions and any specifications, drawings, samples, or other written terms and conditions, proposals, scope of services, addenda, fee schedule, and purchase and work orders approved by FenceOKC are specifically incorporated in the Agreement. Any purchase order, acknowledgment ticket, invoice, supplemental agreement, or other instrument of Customer, or acceptance of the services and goods by Customer, shall be construed as an acceptance of this Agreement. Any attempt by Customer to insert or include any different or additional terms and conditions not in conformity with this Agreement shall be invalid. If conflict occurs between this Agreement and other provisions incorporated in writing in the Agreement by FenceOKC, this Agreement shall prevail. The Agreement shall not be modified or altered by any subsequent course of performance between Customer and FenceOKC, and this Agreement shall constitute an express waiver and variance from, amendment to, or modification of, any agreement submitted by Customer to FenceOKC. In rendering any service or providing any product, FenceOKC shall be an independent contractor.
- PAYMENT – 50% of payment on all orders is due on the first day of installation of the Work and the remaining 50% is due immediately upon completion of the Work, unless otherwise agreed to in writing by Customer and FenceOKC. Interest at eighteen percent (18%) per annum will be charged on all past due balances. Customer shall be liable for all costs and expenses, including reasonable attorney’s fees and related costs, incurred by FenceOKC to collect any past due balance.
- QUOTATIONS AND PROPOSALS– All quotations and proposals are made for prompt acceptance and any term quoted is subject to change without notice, unless specifically stated otherwise in the quotation or proposal. Prices quoted by FenceOKC and accepted by Customer are subject to escalation as specified in FenceOKC’s quotation. All prices are exclusive of any federal, state, or special taxes imposed on the sale or use of goods and services sold.
- CANCELLATION — Purchase orders once placed can be canceled only with FenceOKC’s written consent, and then only without loss to FenceOKC, including compensation to FenceOKC for all completed Work, Work in progress, and Work-related special materials, fabrication, assembly, engineering, general, and administrative expenses, subcontractor cancellation charges, and normal profits. No products associated with FenceOKC’s services may be returned for credit or adjustment without express written permission from FenceOKC. Nothing in this paragraph shall limit a qualified individual Customer’s rights under paragraph 7 of this Agreement.
- MODIFICATIONS – FenceOKC reserves the right to change or modify the design and construction of any products or the procedures and methods for its Work incurring no obligation to furnish or install such changes or modifications on products previously or subsequently sold or to use such procedures or methods regarding services previously or subsequently provided.
- LIMITED WARRANTY AND STANDARD OF CARE– FenceOKC will strive to perform the Work in a manner consistent with that level of care and skill ordinarily exercised by members of FenceOKC’s industry practicing in the same locality under similar circumstances at the time the services are performed. (A) Manufacturers’ warranties, if any, shall pass through to Customer to the extent permitted by law, and FenceOKC shall use reasonable efforts to assist Customer in contacting the manufacturer to assert warranty claims (including any type of gate opener equipment). FenceOKC shall incur no other or further obligation to Customer, and nothing shall be construed as rendering FenceOKC as an agent of Customer; (B) FenceOKC provides a Limited Warranty to the original purchasing Customer only. The Limited Warranty includes (i) free replacement wood for any Superior Eastern Red Cedar wood fence or gate, if in FenceOKC’s sole discretion and inspection at the original place of installation, the fence or gate is determined to be damaged by decay or insects within twenty (20) years from the date of the original purchase. Decay shall not include or mean any damage resulting from the effects of salt water, or Customer’s application of soil, mulch, vegetation, bark, or other moisture retaining material on the fence or gate. The Limited Warranty shall not include any other damage due to acts of God, using the wood fence or gate in a manner other than how it was designed, installed, and intended for use by FenceOKC, surface mold from weathering of the wood, or damage resulting from Customer’s alteration of the fence or gate. Customer must pay for all installation costs of the Limited Warranty replacement wood, and (ii) A one (1) year workmanship warranty on all fences and gates of any type of material sold and installed by FenceOKC, which includes a case by case inspection and determination of workmanship quality by FenceOKC, and FenceOKC shall in its sole discretion make recommendations for workmanship and installation cures, and (C) THE EXPRESS LIMITED WARRANTY SET FORTH IN THIS PARAGRAPH IS EXCLUSIVE AND NO OTHER WARRANTIES OF ANY KIND, WHETHER STATUTORY, ORAL, WRITTEN, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SHALL APPLY, UNLESS THE CUSTOMER IS AN INDIVIUAL, THEN ANY IMPLIED WARRANTIES CUSTOMER HAS SHALL BE LIMITED TO THE LENGTH OF THE LIMITED WARRANTY OUTLINED IN THIS PARAGRAPH 6(B)(ii). CUSTOMER’S SOLE REMEDY IS ADDRESSED IN PARAGRAPH 20 AND FENCEOKC’S SOLE OBLIGATION ARISING OUT OF OR IN CONNECTION WITH DEFECTS IN SERVICE, MATERIALS, OR WORKMANSHIP, WHETHER BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL BE THOSE STATED IN THIS PARAGRAPH.
- CUSTOMER RIGHT TO CANCELLATION – An Individual Customer may cancel any time prior to midnight of the third business day after the date of the first Project Estimate with FenceOKC, if FenceOKC approached Customer at Customer’s home to initiate a sale. (16 CFR 429.1).
- TIME OF PERFORMANCE — Promises of performance of services or delivery of products are given as accurately as conditions permit and every effort will be made to make deliveries and perform services as scheduled. FenceOKC assumes no liability for damages arising out of failure to perform services or delivery products as scheduled. If Customer requires additional Work, inspection or testing, it shall be charged to Customer’s account and will be considered as extending the performance dates accordingly.
- FAILURE TO DELIVER – FenceOKC shall not be liable for failure or delay in delivery services or products due to acts of God, war, civil commotion, labor disputes and strikes, including those involving employees and agents of FenceOKC, fire, flood or other casualty, governmental action, priorities or regulations, lack of ability to obtain satisfactory raw materials, components, supplies, fuel, power or transportation, breakdown of equipment, supplier or sub-contractor delay or any other events or causes beyond FenceOKC’s control whether foreseeable or of similar or dissimilar nature than those enumerated, FenceOKC shall have such additional time within which to perform as may be reasonably necessary under the circumstances and may apportion its production and services among its customers in such manner as it may consider to be equitable. All claims regarding shortages must be made within thirty (30) days from receipt of shipment, and must be accompanied by the packing list(s) and documents covering the shipment.
- TRANSPORTATION COSTS — Unless otherwise specified in FenceOKC’s invoice, Customer shall pay all transportation charges for products of or sold by FenceOKC based on point of shipment or manufacture, insurance charges, and charges for stampings, bills of lading, or other documents.
- RISK OF LOSS — Unless otherwise agreed by FenceOKC in writing, title, and risk of loss, injury, or destruction shall pass to Customer at point of origin of the statement. Any such loss, injury, or destruction shall not release Customer from its obligation under the Agreement.
- CUSTOMER INDEMNIFICATION OF FENCEOKC — Customer agrees to indemnify, defend and hold FenceOKC harmless for its Work against all claims, demands, actions whether civil or administrative, liability, fines, penalties and expense, including all attorney’s fees and costs, whether based on warranty, contract, negligence, strict liability or otherwise.
- NONCONFORMING SERVICES, GOODS, AND/OR DISPUTED INVOICES — Customer shall notify FenceOKC in writing of any alleged nonconformity of services, goods, and/or disputed invoices tendered by FenceOKC under this Agreement within ten (10) days after receipt of the services, goods, and/or invoices. Such written notice shall provide a detailed explanation and description of the alleged nonconformity and/or dispute. If FenceOKC agrees with Customer’s nonconformity in goods and/or services assessment(s), FenceOKC shall have the right, at its sole and exclusive option, to cure the improper tender or delivery by correcting the tender or substituting tender of conforming goods and/or services within a reasonable time after receipt of Customer’s notice of nonconformity. Customer shall grant FenceOKC’s reasonable requests for extension of time to cure any improper tender. FenceOKC and Customer will cooperate in good faith to resolve any such disputes regarding invoices within ten (10) days after the dispute is submitted to FenceOKC. If such resolution of the dispute favors Customer, FenceOKC shall credit Customer for the disputed amount. If such resolution favors FenceOKC, payment is due within ten (10) business days that Customer is notified of such resolution. Customer’s failure to provide notice of nonconformity as above described shall be prima facie evidence of conformity of the goods, services, and invoices tendered by FenceOKC under the Agreement.
- CUSTOMER’S DUTY TO PRESERVE NONCONFORMING GOODS — Customer shall protect and preserve all allegedly nonconforming goods and shall strictly follow the reasonable instructions of FenceOKC. Customer shall incur only those expenses that are reasonable and necessary in fulfilling its obligation to protect and preserve all allegedly nonconforming goods.
- COVENANT AGAINST SOLICITATION OF FENCEOKC’S EMPLOYEES, CONTRACTORS, SUPPLIERS, AND CUSTOMERS: Customer, by agreeing and authorizing FenceOKC to perform the, further agrees not to, either on Customer’s own account or for any person, firm, partnership, corporation, or other entity: (a) solicit, interfere with, or endeavor to cause any employee or contractor of FenceOKC to leave employment with FenceOKC, (b) induce or attempt to induce any FenceOKC employee to breach employee’s employment agreement with FenceOKC or contractor to breach contractor’s agreement with FenceOKC, (c) solicit, induce, or attempt to solicit or induce any past or current supplier or customer of FenceOKC to: (i) cease doing business in whole or in part with or through FenceOKC, or (ii) do business with any other person, firm, partnership, corporation, or other entity which performs services materially similar to or competitive with those provided by FenceOKC. This covenant against solicitation shall remain in full force and effect for a period of twenty-four (24) months from that date FenceOKC last performs Work for the Customer.
- LIMITATION OF LIABILITY — The liability of FenceOKC, its agents, employees, subcontractors, and suppliers regarding all claims arising out of the performance or non-performance of FenceOKC’s obligations for the design, manufacture, sale, delivery, storage, installation, and/or use of the products sold under the Agreement, or the rendition of services, whether based on warranty, contract, negligence, strict liability or otherwise, shall not exceed, in the aggregate, the net purchase price (excluding taxes and freight) for such products or services, and shall in no event include damages for loss of profits or revenue; loss by plant shut-down; increased expense of operation of plant or equipment; increased cost of purchasing or providing equipment, materials, supplies or services; cost of replacement power or capital; claims of Customer’s customers; inventory or use charges; or incidental or consequential damages of any nature. FenceOKC is not responsible for any damage to surface or subsurface property, including, trees, shrubs, landscaping, hardscape, and sprinkler systems, etc.
- LIMITATION OF LIABILITY: UTILITY LINES – FenceOKC will obtain qualified industry professionals to mark all utility and related lines related to the Work, including but not limited to, cable, internet, electric, water, and gas. FenceOKC shall not be liable for incorrectly marked or unlocatable lines of any kind.
- CUSTOMER WARRANTIES. The Customer represents and warrants: (a) if customer is an entity, it is duly organized, validly existing, and in good standing under the laws of its origin, with all requisite power to enter into and perform its obligations under this Agreement under its terms, (b) if Customer is an individual, Customer has performed the due diligence for installation of fences and gates within Customer’s property boundaries, and has the requisite authority to enter into and perform Customer’s obligations under this Agreement, and (c) neither Customer’s equipment nor facilities will pose a hazard to FenceOKC’s equipment, facilities, the public, or FenceOKC’s personnel, or contractors (d) Customer’s use of FenceOKC’s Work will comply and conform with all federal, state, and local laws, administrative, and regulatory requirements, and any other authorities having jurisdiction over the subject matter of this Agreement, and Customer will apply for, obtain, and maintain all registrations and certifications which may be required by such authorities.
- ASSIGNMENT – This Agreement and any warranties provided may not be assigned or transferred, whether by operation of law or otherwise by Customer without the prior written consent of FenceOKC.
- ARBITRATION/VENUE/GOVERNING LAW: FENCEOKC AND CUSTOMER AGREE THAT ALL DISPUTES, CONTROVERSIES, OR CLAIMS RELATING TO THE AGREEMENT AND/OR FENCEOKC’S WORK RENDERED TO, OR EXPENSES INCURRED FOR CUSTOMER, INCLUDING BUT NOT LIMITED TO THE VALIDITY AND ENFORCEABILITY OF THIS AGREEMENT, AND ANY ISSUE RELATING TO THE ARBITRABILITY OF THIS AGREEMENT, OR ANY OTHER ISSUE OR MATTER, SHALL BE PROMPTLY RESOLVED EXCLUSIVELY BY BINDING ARBITRATION, PURSUANT TO THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION, BY A SINGLE, LICENSED ATTORNEY ARBITRATOR, APPOINTED IN ACCORDANCE WITH THOSE RULES AT, AND IN OKLAHOMA COUNTY, OKLAHOMA, AND WHICH ALL COSTS, EXPENSES, AND FEES OF SAME, INCLUDING BUT NOT LIMITED TO ALL ATTORNEY FEES AND STATUTORY COSTS AND NON-STATUTORY COSTS AND EXPENSES, SHALL BE BORNE BY THE NON-PREVAILING PARTY. THE LAWS OF THE STATE OF OKLAHOMA SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION OF THIS AGREEMENT WITHOUT REGARD TO CONFLICTS OF LAWS. THIS PARAGRAPH SHALL NOT PRECLUDE FENCEOKC FROM SEEKING PROVISIONAL REMEDIES IN AID OF ARBITRATION FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA, WHICH SHALL HAVE JURISDICTION AND VENUE OVER FENCEOKC AND CUSTOMER UNDER THIS AGREEMENT. THIS AGREEMENT CONTAINS THE ENTIRE AGREEMENT BETWEEN THE FENCEOKC AND CUSTOMER REGARDING THE MATTERS DESCRIBED, AND THE FEES CHARGED, AND EXPENSES TO BE PAID, AND SUPERSEDES ALL PRIOR ORAL OR WRITTEN STATEMENTS.
- NOTICE TO CUSTOMER RE: LIEN DISCLOSURE — Under the Oklahoma Lien Law, any contractor, subcontractor, laborer, supplier, or other person or entity who helps to improve your property, but is not paid for his or her work or supplies, has a right to place a lien on your land, or property where the work was performed and to sue you in court to obtain payment. This means that after a court hearing, Customer’s land and property could be sold by a court officer and the proceeds of the sale used to satisfy what Customer owes. This can happen even if you have paid your contractor in full if the contractor’s subcontractors, laborers, or suppliers remain unpaid. To preserve their right to file a claim or lien against your property, certain claimants such as subcontractors or material suppliers are each required to provide you with a document called a “preliminary notice.” Contractors and laborers who contract with Customers directly do not have to provide such notice since you are aware of their existence as an owner. A preliminary notice is not a lien against your property. Its purpose is to notify you of persons or entities that may have a right to file a lien against your property if they are not paid. In order to protect their lien rights, a contractor, subcontractor, supplier, or laborer must file a mechanic’s lien with the county recorder, which then becomes a recorder lien against your property. Generally, the maximum time allowed for filing a mechanic’s lien against your property is 90 days after substantial completion of your project.
- RIGHT TO STOP WORK — If any payment is not made to FenceOKC, FenceOKC may, upon five (5) calendar days’ notice to Customer, suspend all Work until paid in full and may terminate the Agreement. FenceOKC shall have the right to stop Work and keep its Work idle until all past due progress payments are received. FenceOKC is excused by Customer from paying any material, equipment, and/or labor suppliers or any subcontractors (collectively called “suppliers”). If these suppliers make demand upon Customer for payment, Customer may not make such payment on behalf of FenceOKC without FenceOKC approval at which time FenceOKC may assess a late payment penalty by not reimbursing the Customer the amount paid to the suppliers. The Customer is responsible to verify the true amounts owed to FenceOKC and to these same suppliers prior to making payment. FenceOKC shall not be entitled, under any circumstances, to collect as reimbursement from contractor or supplier any amount greater than that exact amount actually and truly owned by FenceOKC to the same suppliers for Work done on Customer’s project.
- OUTSIDE AGENCY CIRCUMSTANCES — Any changes required by an outside governmental agency such as state or municipal governments, inspection services, or the like would be considered additional Work, which is to be paid by the Customer.
- INSTALLATION — Customer understands the FenceOKC may or may not install the materials. FenceOKC has the right to subcontract any part of, or all of the Work.
- AMENDMENTS AND CHANGED CONDITIONS — If during the course of performance of this Agreement conditions or circumstances are discovered which were not contemplated by FenceOKC at the commencement of this Agreement, FenceOKC shall notify Customer of the newly discovered conditions or circumstances, and Customer and FenceOKC shall renegotiate, in good faith, the terms and conditions of this Agreement. If amended terms and conditions cannot be agreed upon within thirty (30) days after notice, FenceOKC may terminate this Agreement and FenceOKC shall be paid for its services through the date of termination. Should Customer require any modification to the Work covered under this Agreement, any cost incurred by FenceOKC shall be added to the Work price as extra Work, and Customer agrees to pay FenceOKC its fees and costs for such extra Work. All extra Work as well as any other modifications to the original Work Agreement shall be specified, approved, and signed, by both parties in a written amendment, and may execute same in conformance with paragraph 33 below. All amendments shall become a part of, and incorporated into this Agreement.
- ELECTRONIC COMMUNICATIONS AUTHORIZED – FenceOKC and Customer agree to accept information, communications, and billing through electronic communications, including email, at the email address(s) provided to FenceOKC by Customer. Customer will be open and transparent with FenceOKC, keeping the FenceOKC abreast of new developments or changes that could affect the Customer’s Work. The Customer agrees to comply with all laws relating to FenceOKC’s Work, and will discuss no disagreement, dispute, arbitration, or litigated matter, the opposing party, lawyers, or judges on social media or other electronic digital forums or media without FenceOKC’s express written consent.
- ELECTRONIC MEDIA — Because data stored on or sent from electronic media can deteriorate undetected or be modified without FenceOKC’s knowledge, the Customer accepts responsibility for the completeness or readability of the electronic media.
- DELAY — FenceOKC shall not be held responsible for any damage occasioned by delays resulting from Work done by Customer’s subcontractors, extra Work, acts of Customer, or Customers agent including failure of Customer to make timely progress payments or payments for extra Work, shortages of material and/or labor, bad weather, fire, strike, war, governmental regulations, or any other contingencies unforeseen by FenceOKC or beyond FenceOKC’s reasonable control.
- DISPLAYING SIGNS — Customer grants to FenceOKC the right but not the obligation to display signs and advertise at the job site for the period of time starting at the date of signing of this contract, and continuing uninterrupted until fourteen (14) days past the date the job is completed and payment in full has been made.
- HAZARDOUS SUBSTANCES — Customer understands that FenceOKC is not qualified as a hazardous material handler or inspector or as a hazardous material abatement contractor.
- SEVERABILITY — If any provision is deemed illegal, unenforceable, or unconscionable, the remainder of the Agreement shall not be affected.
- WAIVER — Any waiver of any right or provision of this Agreement by FenceOKC shall not be construed as a waiver or bar of any such right or provision at any future time, unless expressly stated by FenceOKC in writing.
- SIGNATURES — The parties to this Agreement agree to accept each other’s electronic and telefax signatures as if they were originals, if such signatures are required.
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