Agreement and Definitions. This Agreement includes the foregoing page titled “Estimate” (the “face page”), any attached plans, and all other specifications, drawings, notes, addenda, and change orders now or hereafter attached hereto. In this Agreement, “including” means “including but not limited to;” and the singular includes the plural and vice versa. Capitalized words not otherwise defined below have the meanings shown on the face page.
The Work. KGDG agrees to provide at the Property the products and services described on the face page (the “Work”). Changes in the Work can only be made by written change order accepted by KGDG in its sole discretion. Change orders become a part of this Agreement and may result in additional cost to Customer.
Exclusions. Products and services not specified in this Agreement or in a change order are not included in the Work. Unless specified otherwise, sale of products does not include installation, and, unless specified otherwise, installation does not include the following: finish matching or painting; framing; earthwork; or the provision, repair or alteration of flooring, structural elements or utility service components, including electrical and other wiring.
Dates. KGDG will use commercially reasonable efforts to start the Work on the Estimated Start Date or on such other date as Customer and KGDG may agree, and to substantially complete the Work before expiration of the Lead Time. The “Estimated Completion Date” is the estimated date of substantial completion if the Estimated Start Date is the actual start date. Substantial completion of the Work by the Estimated Completion Date, or by any other date, is not guaranteed.
Special Orders. Customer acknowledges that requesting special order or out-of-stock items may result in delays, increases in cost due to supplier price changes, and may, at KGDG’s sole discretion, require payment in advance. SPECIAL ORDER ITEMS ARE NOT ELIGIBLE FOR RETURN OR REFUND.
Access; Cooperation. Customer agrees to provide access to the Property and all utility services necessary to the performance of the Work, and to otherwise cooperate with KGDG. Customer shall be responsible for obtaining any necessary permits, licenses, consents or approvals.
Deposit. Unless otherwise indicated on the face page, a deposit of 50% of the Total Price shall be paid at the time of Agreement acceptance. Whatever the deposit amount, it shall be applied against final payment. Deposited funds do not earn interest for Customer and may be commingled with other funds.
Payment; Late Payment Interest; Lien. Customer agrees to pay KGDG in accordance with the terms of this Agreement. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and government charges. The total amount payable shall be the Total Price, as may later be adjusted (i) by change order, (ii) to reflect suppliers’ increases in special order prices, and (iii) to correctly assess taxes payable by Customer. Final payment shall be paid no later than 30 days after invoice. Amounts not paid when due shall accrue interest from the due date at 18% per annum, compounded monthly. In order to secure payment, KGDG may subject the Property to a lien as provided in A.R.S. §§33-981, et seq.
Customer Representations and Warranties. Customer represents, warrants and agrees that (i) Customer has all rights and authorities necessary to enter into and perform under this Agreement without the joinder or consent of any other person; (ii) the Property is in compliance with all applicable laws, regulations and ordinances and is free of dangerous conditions and hazardous materials, and (iii) Customer has provided KGDG with all information about the Property that is not readily apparent without investigation but is relevant to the proper and safe performance of the Work and operation of the products. KGDG is entitled to rely without investigation on all representations made by Customer and on all information provided by Customer.
Photo Consent. Customer grants KGDG permission, prospectively and retroactively, to enter upon and photograph or otherwise record images of the Property and persons and goods thereon from time to time for purposes of bidding, performing, or documenting the Work, including after completion thereof. All such images and derivatives thereof (“Images”) are and shall be the sole property of KGDG. Customer hereby consents to KGDG’s use, publication, reproduction, distribution, performance and public display of any and all Images in any form, in any medium, in any place, by any technique now known or later invented, at any time and from time to time, for training, sales and operations management, packaging, marketing and advertising (including print, broadcast, online and social media). This grant of consent is irrevocable, perpetual, universe-wide in effect, and given free of restrictions, including restrictions on manipulation, distortion, deconstruction, transformation, or combination with any narrative, text, sound, image, effect or other thing whatsoever. KGDG agrees it will not publish or publicly display any Image in which an individual is recognizable without obtaining that individual’s consent. The provisions of this paragraph shall inure to the benefit of KGDG and its licensees, successors and assigns, and shall survive any termination of this Agreement.
Warranties. KGDG warrants its workmanship, and it warrants the products it manufactures against defects in workmanship and materials, for a period of one year commencing on the Completion Date. This limited warranty is personal to Customer and may not be transferred. It does not cover ordinary wear and tear, or consequences of misuse, abuse, alteration, inadequate maintenance, operator error, Customer or third-party repair or replacement, building structural defect or change, pests, defective or interrupted energy supply, casualty, or acts of God. KGDG does not warrant in any respect for any period of time, and will not be liable for, any defects in or relating to any third-party products or hardware purchased, installed or serviced under this Agreement, including doors, gates, motors, springs, switches, receivers and controls (the “Goods”). The Goods are covered only by their respective manufacturer’s or supplier’s warranties, if any. The durations and terms of those warranties vary. KGDG shall not be liable for defects in any of the Goods or for any failure or refusal of any manufacturer or other person to honor its product warranty. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, KGDG DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Indemnity. Except to the extent claims, damages, injuries, losses and expenses arise out of the negligence of KGDG or its indemnitees, employees, subcontractors, consultants or agents (including KGDG, the “Indemnitees”), Customer shall indemnify and hold harmless the Indemnitees from and against all claims, damages, injuries, losses and expenses (including reasonable attorneys’ fees and costs) arising out of or relating to the Property, the Work, or acts or omissions of Customer or its contractors, licensees, invitees or affiliates.
Force Majeure; Consequential Damages. KGDG shall not be liable for delays or damages resulting from storms, fire, labor disputes, logistical or supply chain disruptions, disease, civil discord, utility interruptions, acts of God or other causes reasonably beyond the control of KGDG. KGDG shall not be liable for incidental, speculative, or consequential damages.
Termination; Suspension. KGDG may suspend its performance or terminate this Agreement immediately upon notice to Customer if Customer fails to pay any amount when due hereunder or breaches any other obligation hereunder. Suspension shall not preclude KGDG from later terminating this Agreement, nor shall any suspension or termination preclude or limit KGDG’s exercise of any other rights or remedies available to it under this Agreement or applicable law. All provisions of this Agreement that explicitly survive termination of this Agreement, and all other provisions which, by their nature, can reasonably be inferred to survive termination of this Agreement, shall survive any termination of this Agreement.
Attorneys’ Fees. If KGDG is the prevailing party in any lawsuit or other legal proceeding involving claims arising out of or related to this Agreement or the Work, KGDG shall be entitled to recover its legal costs and reasonable attorneys’ fees incurred.
Entire Agreement; Severability; Captions; Assignment; Successors and Assigns; Governing Law; Counterparts. This Agreement contains the entire agreement of the parties with reference to its subject matter and supersedes all prior written or oral understandings or arrangements between them concerning the same. The terms of this Agreement may not be altered or modified except by an instrument in writing signed by Customer and KGDG. If any provision of this Agreement is declared void or unenforceable, such provision shall be deemed severed from the Agreement and the remaining provisions shall remain in full force and effect. Customer may not assign this Agreement without the prior written consent of KGDG, which consent may be granted or withhold in its sole discretion. Any attempted assignment by Customer without such consent shall be void. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. This Agreement shall be governed by and construed according to the law of Arizona without respect to choice of law principles. This Agreement may be executed electronically and in one or more counterparts.
END OF TERMS AND CONDITIONS
NOTICE: The owner of the Property has the right to file a written complaint with the Registrar of Contractors for an alleged violation of Section 32-1154, subsection A, Arizona Revised Statutes. Complaints must be made within the applicable time period as set forth in Section 32-1162, subsection A. Contact the Arizona Registrar of Contractors at (602) 542-1525 or at http://www.roc.az.gov.
