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<br />
<br />TERMS AND CONDITIONS
<br /> 10/21
<br />“Hoffman” shall mean Hoffman Mechanical Solutions, Inc. and its officers, employees and agents. “Customer” shall mean the person or entity entering into this Agreement to purchase services and/or goods.
<br />1. Controlling Terms & Conditions: This Agreement, upon Customer’s acceptance, is limited to the terms and conditions stated herein, despite any additional or conflicting terms and conditions contained in
<br />any purchase order, any other document presented by Customer, or any contract document between Customer and any third-party (i.e., owner, other contractor, etc.), all of which additional or conflicting terms
<br />are hereby rejected by Hoffman. No waiver of, or modification to, these Terms and Conditions shall be valid unless made in writing and signed by an authorized representative of Hoffman. Hoffman salespeople
<br />are not authorized to waive or modify any Terms and Conditions. The terms of any written proposal / quote made by Hoffman (“proposal”) and these Terms and Conditions shall constitute the entire agreement
<br />of the parties.
<br />2. Acceptance: Any Hoffman proposal expires if not accepted by Customer within thirty (30) days from the date of the proposal. Prices are at all times subject to escalation. Typographical and clerical errors
<br />in quotations, orders and acknowledgments are subject to correction. Customer is deemed to have accepted any Hoffman proposal, including these Terms and Conditions, when Customer either (a) receives
<br />and retains an acknowledgement from Hoffman without written objection within ten (10) days, (b) accepts delivery of all or any part of the goods ordered, (c) provides to Hoffman delivery dates, shipping
<br />instructions, or other instructions evidencing acceptance, or (d) otherwise executes or assents to any proposal or these Terms and Conditions. If Customer accepts any proposal, Customer’s order shall be
<br />deemed acceptance of the proposal subject solely to Hoffman’s terms and conditions. If Customer’s order is expressly conditioned upon Hoffman’s acceptance or assent to terms and/or conditions other than
<br />those stated herein, return or acknowledgment of such order by Hoffman with Hoffman’s Terms and Conditions attached or referenced serves as Hoffman’s notice of objection to, and rejection of, Customer’s
<br />terms and as Hoffman’s counteroffer to provide goods or services in accordance with the Hoffman proposal and Hoffman’s Terms and Conditions. If thereafter Customer does not object to Hoffman within ten
<br />(10) days by written notice to Legal@hoffman-hoffman.com, Hoffman’s counteroffer will be deemed accepted by Customer. Customer’s acceptance of all or any part of any goods ordered will constitute
<br />Customer’s acceptance of Hoffman’s proposal subject to Hoffman’s Terms and Conditions.
<br />3. Additional Services / Materials: As work progresses, there may be a need for additional services or goods, which could not be anticipated at the time this Agreement was entered. Hoffman shall notify
<br />Customer of the description and price for such additional work or material. If Customer authorizes Hoffman to proceed with the additional work or materials, the contract price and dates of completion shall be
<br />mutually agreed upon and adjusted accordingly, or Hoffman shall not be responsible for the extra work.
<br />4. Terms of Payment / Taxes: Payment is due net thirty (30) days from the date of each Hoffman invoice to Customer. Interest at the rate of 1 1/2% per month (or the highest interest rate allowed by applicable
<br />law, if lower) may be charged after the 30-day period until payment is received. Hoffman accepts credit card payments. If Customer chooses to pay by credit card, Customer is subject to an additional
<br />convenience fee of 3.0% of the total amount paid by credit card. Customer shall pay all costs of collection incurred by Hoffman including, but not limited to, reasonable attorneys’ fees, collection fees and court
<br />costs. Hoffman may suspend all further services and transactions (regardless of their status) without liability if Customer’s account is more than thirty (30) days past due or if Customer’s credit, in the sole
<br />judgment of Hoffman, is impaired at any time. Partial invoices may be submitted for any portion of completed work and/or delivered materials. While risk of loss passes to Customer, Seller will have a purchase-
<br />money security interest in all goods (including any accessories and substitutions) purchased under this Agreement to secure payment in full of all amounts due Hoffman, and the underlying proposal, together
<br />with these Terms and Conditions, form a security agreement (as defined by the UCC.) Customer shall keep all goods purchased under this Agreement free of all taxes and encumbrances, shall not remove
<br />said goods from their original installation point and shall not assign or transfer any interest in said goods until all payments due Hoffman have been made. The purchase-money security interest granted herein
<br />attaches upon Hoffman’s acceptance or acknowledgment of this Agreement and Customer’s receipt of said goods, but prior to installation. Customer will have no rights to set off against any amounts which
<br />become payable to Hoffman under this Agreement or otherwise. Customer is responsible to pay in full for the services and/or goods provided by Hoffman regardless of whether such goods or services are
<br />funded for Customer pursuant to any extraneous contract and/or by an applicable project owner or contractor. Notwithstanding any Customer form or document to the contrary, Hoffman shall not release any
<br />rights to make a lien and/or bond claim, or other claim for damages, in connection with its work or anticipated work (including the sale of goods and/or services) until Hoffman has obtained payment in full for
<br />such work and any damages. Unless otherwise agreed by Hoffman in writing, Customer shall pay to Hoffman, in addition to the contract price, all sales, use, excise, privilege or other taxes imposed by any
<br />local, state or federal taxing authority payable in connection with the services and/or goods furnished hereunder.
<br />5. Shipments / Claims: All shipments of goods are at Customer’s risk, f.o.b. factory, or if shipped from another location, f.o.b. point of shipment, with charges either allowed, added to invoice, or collected as
<br />noted. Any claims for damage or shortage or loss in transit must be filed by Customer against the applicable carrier.
<br />6. Warranties: Upon condition that Hoffman receives payment in full for all amounts owed, Hoffman (a) extends to Customer the manufacturer’s warranty (a copy of which is available upon request) on any
<br />goods purchased, and said manufacturer’s warranty is in lieu of any warranties contained in any applicable project contracts, conditions, plans, or specifications, and (b) warrants that the labor it provides will
<br />be performed in a workmanlike manner in accordance with industry standards. No claim for defective workmanship under this warranty may by brought unless Customer provides Hoffman with written notice of
<br />such defect within ninety (90) days from the date such services are performed. HOFFMAN MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING,
<br />WITHOUT LIMITATION, IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Hoffman does not commit that the equipment sold will effectively control,
<br />eliminate, kill or prevent the spread of COVID-19 or other mold, bacteria, virus, or pathogen, and Hoffman expressly disclaims that the product is fit for this purpose. Hoffman shall have no liability or duty to
<br />defend or hold harmless Customer or any other third-party with respect to any claim, injury, loss or damage arising from or in connection with COVID-19.
<br />7. Limitation of Remedy and Liability: To the extent Hoffman is liable to Customer under any legal theory, HOFFMAN’S MAXIMUM LIABILITY (HOWEVER ARISING) SHALL NOT EXCEED ONE HALF (.5)
<br />TIMES THE AMOUNT ACTUALLY PAID HOFFMAN UNDER THIS AGREEMENT FOR ANY GOODS AND/OR SERVICES WHICH ARE THE CAUSE OF ANY LOSS OR DAMAGE TO CUSTOMER. HOFFMAN
<br />SHALL HAVE NO LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR LIQUIDATED DAMAGES OR
<br />LOSSES, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, INCOME, PROFIT OR PRODUCTION, LOST DATA, SPOILAGE, DELAY, OR INCREASED COST OF OPERATION. SAID EXCLUSIONS
<br />APPLY EVEN IF HOFFMAN HAS BEEN ADVISED OF SUCH POSSIBLE DAMAGES OR IF SUCH POSSIBLE DAMAGES WERE REASONABLY FORESEEABLE. In addition to the foregoing, Hoffman’s
<br />liability shall be further limited to only that proportion of the loss or damage suffered by Customer, which is directly caused by, and the fault of, Hoffman. Hoffman shall have no responsibility for misuse of any
<br />system or goods by the Customer or third parties, for the negligence of Customer or third parties, for the design of the system, or for obsolescence, failure of, or damage to equipment caused by power
<br />interruptions, low voltage, burned out fuses, single phasing, phase reversal, low water pressure, vandalism or other deficiencies or causes beyond Hoffman’s control. Customer acknowledges that Hoffman is
<br />not responsible for the design of goods or services purchased and did not participate in any project planning or design in connection with such goods or services. Under no event shall Hoffman owe any duty
<br />or have any obligation whatsoever to any customer or client of Customer or to any other third party.
<br />8. Indemnification / Insurance: To the fullest extent permitted by law, Customer shall indemnify, hold harmless and defend Hoffman and its officers, employees and agents from and against all claims,
<br />demands, liabilities, suits, judgments, awards, or expenses of any kind (including reasonable attorneys’ fees and costs incurred defending such claims or demands, regardless of whether they result in legal
<br />action or are prosecuted to final judgment or award), which result or arise from Customer’s purchase, installation, or use of goods or services provided by Hoffman, including all claims that goods sold or
<br />guidance provided by Hoffman or its employees contributed to or failed to prevent or control the spread of COVID-19 or other mold, bacteria, virus, or pathogen. To the fullest extent permitted by law, the
<br />obligations of defense and indemnification set forth herein shall be binding upon Customer no matter what the nature of the claim asserted may be (whether it be for negligence, warranty, strict liability, or
<br />otherwise) and shall be binding even if Hoffman is alleged or proven to have acted negligently; provided, however, that Customer shall have no obligation to provide indemnification to Hoffman if the claim
<br />asserted arises in negligence and is finally adjudicated to have arisen solely from the negligence of Hoffman. Customer shall also indemnify and hold harmless Hoffman from all liability for taxes owing in
<br />connection with Customer’s purchase of goods or services. The obligations and rights to indemnity herein shall not negate, abridge or reduce other such rights or obligations under law. This Agreement does
<br />not require Customer to indemnify Hoffman for Hoffman’s own negligent or intentional acts or omissions to the extent that doing so would violate applicable law. Customer and Hoffman jointly authorize and
<br />request any court or arbitrator considering the enforceability of this paragraph to re-write this paragraph so that it requires Customer to defend, indemnify, and hold Hoffman harmless to the fullest extent
<br />permitted by applicable law. Upon written request of Customer, Hoffman shall be required to name Customer as an additional insured to only the coverage types listed on Hoffman’s standard Certificate of
<br />Insurance (available upon request). In no event does Hoffman waive any rights of subrogation.
<br />9. Claims Resolution / Governing Law: Unless Hoffman elects otherwise, all claims and disputes between Customer and Hoffman arising out of or relating to performance of any agreement or breach thereof
<br />must be decided by binding arbitration in accordance with the Construction Industry Arbitration rules of the American Arbitration Association (AAA). Demand for Arbitration must be filed in the regional office of
<br />the AAA closest to Greensboro, North Carolina, and the filing party must serve such Notice upon the other party in accordance with AAA rules. The procedural and substantive law of the State of North Carolina
<br />must apply in and to all arbitration proceedings, and Greensboro, North Carolina, is designated as the sole and exclusive venue for such proceedings. Any award arising from such proceedings shall be final
<br />and binding upon the parties and enforceable in accordance with the Federal Arbitration Act. Hoffman and Customer agree that their transactions involve interstate commerce. This Agreement shall be governed
<br />by and construed solely in accordance with the laws of the State of North Carolina, without regard to principles of conflicts of laws. Hoffman shall have the sole and exclusive right, at Hoffman’s sole and absolute
<br />discretion, to waive the arbitration provision and to elect to litigate any claim or dispute in a court of appropriate jurisdiction. Unless Hoffman elects another court of appropriate jurisdiction in Hoffman’s sole and
<br />absolute discretion, the state courts located in Greensboro, Guilford County, North Carolina, shall be the sole and exclusive forum for any litigation between Hoffman and Customer. Customer consents to the
<br />jurisdiction of the state and federal courts located in Greensboro, Guilford County, North Carolina.
<br />10. Delays / Penalties / Force Majeure: Delivery dates are approximate and not guaranteed. In no event and under no circumstances whatsoever, will Hoffman be liable for any damages or expenses caused
<br />by any failure or delay in making delivery of goods or in performing services hereunder. No penalty clause or liquidated damages of any kind (for delays or otherwise) apply to Hoffman unless pre-approved in
<br />writing by a Hoffman officer. Furthermore, in no event and under no circumstances whatsoever, will Hoffman be liable under this Agreement for any event of force majeure, including but not limited to, acts of
<br />God, riot, war, terrorism, inclement weather, labor strikes, material shortages, pandemic, and other causes beyond Hoffman’s reasonable control.
<br />11. Customer Responsibility: Customer shall provide Hoffman’s personnel with a safe work environment in which to perform their services under this Agreement and provide Hoffman personnel with required
<br />utilities (water, electricity, compressed air, etc.) and reasonable access to Customer’s facilities (elevators, receiving dock, etc.). Customer shall provide adequate service access space and shall remove any
<br />stock, fixtures, partitions, etc. necessary to perform the service. Customer shall promptly notify Hoffman of any unusual operating conditions.
<br />12. Hazards: Hoffman is not responsible for the identification, detection, abatement, encapsulation or removal of hazardous substances, such as (without limitation) asbestos, products or materials containing
<br />asbestos, mold, fungi, mildew, or bacteria. In the event Hoffman encounters any such hazardous substance or condition in the course of its actions under this Agreement, Hoffman may suspend its work and
<br />remove its employees from the subject project, until any such hazardous substance or condition no longer exists. Hoffman shall receive an extension of time to complete its work and additional compensation
<br />for delays encountered as a result of any such situation. At all times now and in the future, Hoffman takes no responsibility for and makes no representations or warranties concerning any existing or future
<br />hazardous substance or condition (i.e., mold) or the remedy or prevention thereof. Furthermore, Customer has a duty to alert Hoffman of any known or likely potential hazards at any project site where Hoffman’s
<br />representatives and affiliates may be present in connection with this Agreement.
<br />13. Refrigerant: Customer shall be responsible for any expense in connection with the modification, removal, replacement or disposal of any refrigerant, as required by law.
<br />14. Termination: Hoffman may terminate any of its obligations under this Agreement, if Customer fails to pay amounts owing to Hoffman when due, fails to perform or comply with any material provision of this
<br />Agreement, or otherwise breaches this Agreement, if such failure or breach is not cured within ten (10) business days after receipt of written notice from Hoffman. Upon termination by either Party, Customer
<br />shall be liable to Hoffman for all goods (including any goods specially ordered, but not delivered) and services provided and all damages and losses sustained by Hoffman, including lost profits.
<br />15. Equal Employment Opportunity / Affirmative Action Clause: Hoffman and Customer shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit
<br />discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex,
<br />sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment
<br />individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status.
<br />16. Government Contracts: If Customer’s purchase of goods or services is in any way connected to any federal, state, or local government project, which implicates or utilizes any Small, Minority or
<br />Disadvantaged Business incentives or qualifications (or other similar laws or regulations), Customer represents and certifies to Hoffman that Customer is performing a commercially useful function on such
<br />project. Currently, Hoffman does not comply with Executive Order 14042 Task Force Guidance as issued September 24, 2021 (“Guidance”). Any Hoffman bid/proposal is contingent upon Customer’s waiver
<br />of the requirements contained in the Guidance, when applicable.
<br />17. Trust Funds: Customer agrees that all funds Customer receives that result from the labor, materials, and/or equipment furnished by Hoffman will be considered “Trust Funds.” Customer will hold all Trust
<br />Funds in trust for the sole and exclusive benefit of Hoffman. Customer will segregate Trust Funds from other funds. Customer will account for all Trust Funds and deliver all Trust Funds to Hoffman. Customer
<br />will not use Trust Funds for any purpose other than paying Hoffman.
<br />DocuSign Envelope ID: ACC31D61-4DF0-41A9-96AD-1C9FDD42E6A9
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