Terms and Conditions
1. Provisions of Goods and Services. GWS will sell to Customer (GWS and Customer are collectively referred to herein as the “Parties” and individually as a “Party”) the products (the “Goods”) and provide or engage and manage third party service providers (“Third Party Service Providers”) to provide to Customer the services (“Services”) specified in GWS’s Quote (the “Quote”). SIGNATURES ARE NOT REQUIRED. FORMAL ACCEPTANCE OF ANY QUOTE AND/OR ITS SIGNATURE BY CUSTOMER IS HEREBY WAIVED BY THE PARTIES HERETO. ANY RECEIPT OF GOODS OR PERFORMANCE BY GWS PURSUANT TO THE QUOTE SHALL BE DEEMED TO BE EVIDENCE OF CUSTOMER’S ACCEPTANCE OF ALL OF THE PROVISIONS HEREOF. Any Quote shall be subject to these Terms and Conditions to the exclusion of all other terms and conditions (including without limitation any terms or conditions which Customer purports to apply in any document whatsoever and whenever), except that any prior written agreement signed by the Parties (e.g. Master Service Agreement, Statement of Work, Service Agreement or Non-Disclosure Agreement) will continue to apply and govern the Goods and Services. Services beyond the Scope of Services or changes to the Scope will be subject to additional charges agreed to in writing. Customer acknowledges that GWS is not the manufacturer of the Goods purchased under the Quote and does not warrant the Goods. Any warranty with respect to the Goods must be provided by the manufacturer. The manufacturer will not always provide a warranty. GWS will pass through to Customer any applicable warranties of the manufacturer to the extent permissible. To the extent GWS is determined to have any liability hereunder with respect to sale of the Goods, GWS's liability is limited to the replacement value of the Goods. THIS WARRANTY SUPERSEDES ALL INCONSISTENT PROVISIONS OF ANY AND ALL PURCHASE ORDERS, INVOICES, ACKNOWLEDGMENTS, OR OTHER WRITINGS OR STATEMENTS, WRITTEN OR OTHERWISE. GWS DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES AND PRODUCT LIABILITY, SPECIFICALLY INCLUDING THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. All Goods are made-to-order and are ineligible for return for exchange. The specifications set forth in the Quote are based on GWS’s interpretation of the scope provided by Customer. It is Customer's responsibility to confirm that the specifications in the Quote are as intended. GWS reserves the right to adjust pricing based on site conditions at time of measure or installation. Field verification may be required prior to production. Customer shall indemnify, defend, and holds harmless GWS from and against any and all claims, demands, liabilities, and expenses arising out any specifications provided by Customer, or the use or resale of the Goods by Buyer or any third party. The Quote does not include applicable shipping or handling unless expressly provided in the Quote. If included, freight charges are based upon a single shipment by common carrier. If expedited or multiple shipments are required additional charges may apply. Unless otherwise noted, approximate manufacturing delivery date for established credit accounts is 3 to 6 weeks from receipt of the signed Quote or purchase order and all materials to be provided by Customer to produce product. Additional charges may be applied to orders requiring a rush delivery date.
2. Independent Contractor Relationship. GWS is independent contractor. Neither Party will have any right, power or authority to enter into any agreement for or on behalf of, or to assume or incur any obligation or liabilities, express or implied, on behalf of or in the name of, the other Party. These Terms and Conditions (“Terms”) and Quote will not be interpreted or construed to create an association, joint venture or partnership between the Parties or to impose any partnership obligation or liability upon either Party. The relationship to of Customer and GWS is non-exclusive.
3. Term. The term of the Quote shall expire on the latest of: the date of completion of the Services; delivery and acceptance of the Goods purchased hereunder; or 90 days from the date the Quote is transmitted to Customer. Any Quote may be terminated by either Party on thirty (30) days prior written notice to the other Party. If either Party fails to perform its obligations under these Terms or the Quote and the other Party is notified in writing of the specific details of such failure to perform and fails to cure such failure within ten (10) days after the written notice, then the Party who did not fail to perform may immediately terminate the Quote and/or these Terms without penalty upon written notice. Termination of the Quote, for any reason shall not release either Party from any obligation, based on events that may have occurred before such termination. Upon termination, Customer shall pay GWS for all Services rendered, Goods sold through the date of termination and all Goods ordered through the date of termination that may not be cancelled or returned to the manufacturer.
4. Compensation. GWS shall be compensated for Goods and Services and reimbursed for expenses advanced on behalf of Customer as established in the Quote. Unless the Quote provides otherwise, a 50% deposit is required at the time the Goods are ordered. Thereafter, Customer shall pay all accrued compensation for Goods and Services performed and reimburse all advanced expenses within 30 days from the date of GWS’s invoice without deduction of setoff. All payments terms are subject to satisfactory credit review and approval. All invoices that are not paid within said 30-day period shall bear interest at the rate of 1.5% per month or the maximum legally chargeable interest, whichever is lower. Customer shall also pay all costs and expenses incurred in the course of enforcement or collection of the amounts due hereunder, including without limitation, reasonable attorney’s fees, whether or not a suit is filed. If Customer elects to cancel Installation within 4 business days of the date scheduled, Customer agrees to pay a cancellation fee equal to 15% of the total estimated charges. If Customer elects to postpone Installation within 10 business days of the original date scheduled, Customer shall pay all costs incurred by GWS in preparation for Installation, including lodging and travel, and remobilization costs. Quoted installation charges are based on one continuous installation with non-union labor and with clear access to delivery and installation areas. Additional charges will be payable if multiple mobilizations are required. Installations into concrete, tile, or steel require an additional surcharge not included in the Quote. The Quote does not include removal of existing product or the providing of blocking unless otherwise noted. The Quote does not include any electrical or plumbing. Additional trips incurred due to construction delays will result in additional charges for actual travel expense plus loss of man hours. Additional charges will also apply for required downtime (including, without limitation, downtime resulting from unavailable space at scheduled installation time/date; Customer provided materials not on site at scheduled installation time/date; electrical wiring not completed; applicable blocking not installed; preceding work of others not completed at scheduled installation time/date).
5. Additional Terms and Conditions Applicable to Disposition of Customer Assets. If GWS will dispose of Customer’s assets (“Decommissioned Property”) as part of the Services, the following additional terms apply. Customer hereby authorizes and directs GWS to arrange for sale or disposal of the Decommissioned Property by whatever legal means GWS, in its sole discretion, deems appropriate. GWS will not take title to the Decommissioned Property and is acting as Customer’s agent in decommissioning it. Unless otherwise provided in writing, Customer acknowledges that the proceeds, if any, of the sale or other disposal of the Decommissioned Property shall be the exclusive property of GWS in exchange for GWS’s efforts in arranging the disposing or sale of the Decommissioned Property in addition to any amounts payable to GWS for such disposal. Customer on its own behalf and on behalf of its successors and assigns expressly waives and releases any and all claims against GWS, its affiliates and their respective owners, officers, employees, managers, directors, agents, assigns, successors, known or unknown, accrued or unaccrued related to or arising from the sale or disposal of the Decommissioned Property. Customer expressly waives and releases any and all claims and/or rights which may have existed with respect to the Decommissioned Property either under Customer and GWS’s original contract or under law, including any rights under the Uniform Commercial Code in effect in the jurisdiction where the Decommissioned Property is located. Customer shall provide GWS with a detailed inventory of all Decommissioned Property. If Customer fails to provide such inventory, GWS shall not be liable for wrongfully disposing of any items. Customer warrants that (i) there is no sensitive data, personal information or hazardous materials contained in any of the Decommissioned Property, (ii) it is the sole and exclusive owner of the Decommissioned Property with good and marketable title thereto, and that no other person or entity has, or claims to have, any interest secured or otherwise, in the Decommissioned Property and (iii) Customer has authority and capacity to execute the Quote. Customer shall defend, indemnify, protect and hold GWS and its agents, officers, employees and affiliates, harmless from and against any and all costs and expenses, including legal fees, arising out of breach of this warranty.
6. Limitation on Liability. In addition to any limitations set forth in the Quote, GWS’s liability will be limited as follows:
A. Loss or Damage to Goods.
i. If Customer does not select, in writing, and pay for replacement cost protection for loss or damage to the Goods, GWS’s liability for such loss or damage to the Goods shall be the lesser of (i) $.60 per pound per article times the weight of the article for intrastate transportation, storage, installation or handling or (ii) the repair cost of the article. In the event Customer selects in writing and pays for replacement cost protection for loss or damage to the Goods, GWS’s liability for such loss or damage to the Goods shall be the lesser of (i) the replacement cost of the article up to the value declared by Customer or (ii) the repair cost of the article, as determined by GWS. The cost payable by Customer for replacement cost protection shall be set forth in writing based on Customer’s declared value of the Goods. This liability shall apply to all articles of the Goods at all times during the performance of Services by GWS, including without limitation during receiving, warehousing, delivery, and installation.
ii. Customer shall note on the delivery paperwork and notify GWS of any visible damage to Goods at the time of delivery or installation, if installations services are provided, and any latent damage within 2 business days of delivery or installation. In addition, Customer must file a formal written claim, on forms provided by GWS, setting forth the details of the items lost or damaged, including Customer’s estimated value, within thirty (30) days after the date of delivery or the date of scheduled delivery if the items are lost. Customer must bring any litigation within two years and one day after denial of any claim unless a particular state law permits for a shorter period in which case the claims must be brought within that shorter period. GWS shall have no further liability for loss or damage to the Goods or any relevant portion thereof from and after such respective dates and times.
iii. Customer acknowledges that GWS has no ability or authority to adequately inspect or test any internal portions or components of any Goods and agree that GWS shall not be liable for any internal damage to any Goods or equipment failure which is not accompanied by related external damage and shall be responsible only for reasonably apparent external damage (and related internal damage) thereto and then only to the extent provided herein. GWS shall have no liability for loss or damage to any of the information or data which is represented by, stored on, or contained in the Goods, whether in printed or computer readable form. In addition, GWS shall not be responsible for, however caused, loss of data or personal information or personal data, including protected health information and personally identifiable information, unauthorized access thereto, or breach of privacy or software programs that fail to function properly even if there is visible damage to the data bearing asset.
iv. Exceptions. GWS shall not be liable for loss or damage to Goods or for delay caused by or resulting from (i) an act, omission, or order of Customer or any third party, (ii) normal deterioration or ordinary wear and tear, (iii) defect or inherent vice of the article, including susceptibility to damage because of atmospheric or climatic conditions such as temperature and humidity changes, (iv) a Force Majeure Event as defined below, (v) concealed damage, (vi) other causes beyond the reasonable control and without the fault of GWS, or (vii) any loss extending beyond the direct physical loss or damage to the Goods.
B. General Limit and Consequential Damages. GWS’s total liability arising under the Quote, other than for loss or damage to Goods, shall be limited to two times the amount paid to GWS by Customer under the Quote. In addition, in no event will GWS be liable for any delay damages or special, indirect or consequential damages of or to Customer, including but not limited to lost profits, lost business revenue, failure to realize expected savings or other commercial or economic loss of any kind, even if GWS is advised of the possibility thereof.
7. Insurance. GWS shall maintain insurance coverages in at least the amounts set forth below. Upon the request of Customer, GWS shall deliver promptly to Customer certificates of insurance made out by the applicable insurer(s) or their authorized agents evidencing the insurance required under this section. The Insurance Certificate should state Customer is included as an additional insured with respect to the general liability and automobile liability policies with respect to claims and/or liability caused by the negligence or willful misconduct of GWS in performing Services hereunder.
a. General Liability $1,000,000 per occurrence/annual aggregate
b. Worker’s Compensation Statutory
c. Employer’s Liability $1,000,000 per occurrence/annual aggregate
d. Automobile Liability $1,000,000 per occurrence/annual aggregate
e. Umbrella/Excess $2,000,000 per occurrence/annual aggregate
8. Non-solicitation. Customer shall not, during the term of any Quote and for a period of twelve (12) months thereafter, either directly or indirectly, hire or entice or induce or attempt to entice or induce any employee, agent or Third Party Service Provider (other than nationwide motor carriers solely providing interstate transportation services in connection with the Quote) providing Services to Customer pursuant to that Quote to leave the employ of, or to terminate, modify or alter his, her or its relationship, whether contractual or otherwise, with GWS to work with Customer or with any person or entity with whom Customer is or becomes affiliated or associated in any way or hire such person or entity, directly or indirectly, to perform Services to Customer or any person or entity with whom Customer is or becomes affiliated or associated without the involvement of GWS unless agreed to in writing by GWS. Customer acknowledges and agrees that the restrictions set forth herein are reasonable in scope, duration, and area and are reasonably necessary to protect the legitimate business interests of GWS, and particularly the other Party’s interest in protecting its confidential information, trade secrets, potential patents, and potential copyrights relating GWS’s business. If any provision of this Section is held to be unenforceable due to the scope, duration or area of its application, the Parties intend and agree that the court making such determination shall modify such scope, duration or area, or all of them to what the court considers reasonable, and such provision shall then be enforced in such modified form.
9. Confidentiality; Intellectual Property. The Parties acknowledge that they may have access to customer lists, list of vendors providing Services to GWS in connection with the Quote, or names or service, process, or other information of a proprietary nature of the other Party during the course of the Quote which is not common knowledge of the general public or is otherwise confidential or proprietary to such Party. Customer and GWS therefore agree that all information provided to the other that is identified as proprietary or confidential by the Party providing the information or by its nature or use is confidential, shall be treated in utmost confidence and shall not be disclosed to any third party, shall be used by Customer or GWS, as the case may be, for purpose of the Quote only and shall not be used to the detriment of the disclosing Party. Neither Party shall be bound to keep confidential any information: (a) which was known to such Party prior to disclosure as evidenced by such Party's prior written records; (b) which is available to the public without fault of the receiving Party; (c) which was independently developed by such Party's employees without access to confidential information; or (d) which is required to be disclosed to comply with any applicable law or court order, provided the disclosing Party gives the other Party prior notice of a required disclosure and an opportunity to intervene by obtaining a court order. The Parties agree that because of the unique nature of the confidential information of the Parties the Party disclosing such information (the “disclosing Party”) will suffer irreparable harm in the event the Party receiving such information fails to comply with any of its obligations set forth herein and that monetary damages will be inadequate to compensate the disclosing Party for such breach. Accordingly, the Parties agree that the disclosing Party, in addition to any other remedies available to it at law or in equity, will be entitled to temporary, preliminary and permanent relief to enforce the terms of this Section.
Ownership of Intellectual Property. GWS’s systems, processes, procedures technologies, software, interfaces, copyrights, trademarks or service marks, patents, trade dress, trade names, trade secrets and know-how (and any goodwill appurtenant thereto), moral rights, any rights of publicity and any other proprietary rights and intellectual property, whether registered or not (the “GWS Intellectual Property”) is the property of GWS, along with any improvements or other modifications to the GWS Intellectual Property. Customer shall have no rights in the GWS Intellectual Property except the right to receive the Services pursuant to the Quote. Customer shall not directly or indirectly through or with one or more other persons (i) decompile, disassemble or reverse engineer the GWS Intellectual Property or copy any ideas, features, functions or graphics of the GWS Intellectual Property; (ii) use the GWS Intellectual to develop a competing service; (iii) provide, lease, lend, or otherwise use or allow others to use the GWS Intellectual Property for its own benefit or for the benefit of any third party; or (iv) remove any GWS copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the GWS Intellectual Property. GWS Intellectual Property is confidential information of GWS.
10. Force Majeure. In the event either Party is unable to meet its contractual obligations as a result of an Act of God, war, insurrection, strikes, derailments, government action or any like causes beyond its control (each, a “Force Majeure Event”), that Party's contractual obligation affected by the Force Majeure Event shall be suspended for the duration of same; provided, however, that the Parties shall make all reasonable efforts to continue to meet their obligations during the duration of the Force Majeure Event; and provided, further, that the Party declaring Force Majeure Event shall notify the other Party promptly by fax when the Force Majeure Event begins, of the Force Majeure Event and when the Force Majeure Event is expected to terminate.
11. Conflicting Language; Additional Terms. In the event of a conflict between the language of these Terms and any executed Quote, the provisions of these Terms control, unless the Quote expressly states that it will control. GWS deems a material alteration and rejects any terms proposed in any Customer’s purchase order or other documentation which add to, vary from, or conflict with these Terms and any Quote. If GWS’s offer to perform service has been issued in response to Customer’s offer and if any of the terms and conditions herein add to, vary from or conflict with any terms of Customer’s offer, then the acceptance by Customer of GWS’s tender to perform services shall constitute an acceptance of Customer’s offer subject solely to the express terms and conditions set forth herein or in a Quote, and any additional, different or conflicting terms in Customer’s offer are rejected by GWS, so that these Terms and the Quote constitute the entire Agreement between Customer and GWS with respect to the subject matter hereof and the subject matter of Customer's offer. Services shall be subject to the terms of Third Party Service Provider’s tariffs except to the extent in conflict with these Terms.
12. Saving Clause. If any term of these Terms is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term. If application of this savings clause should materially and adversely affect the economic substance of the transactions contemplated hereby, the Party adversely impacted shall be entitled to compensation for such adverse impact, provided the reason for the invalidity or unenforceability of a term is not due to serious misconduct by the Party seeking such compensation.
13. Notice. All notices required or permitted to be given hereunder shall be in writing and shall be deemed given when delivered in person or sent by confirmed facsimile, or when received if given by Federal Express or other nationally recognized overnight courier service, or five (5) business days after being deposited in the United States mail, postage prepaid, registered or certified mail to the addresses in the Quote.
A. Each Party consents to the personal jurisdiction of the state and federal courts located in the State of Ohio and agrees that any claim arising from or relating to the Quote shall be brought in the state or federal courts located in Cincinnati, Ohio. These Terms shall be governed by, and construed in accordance with the laws of the state of Ohio (without regard to conflict of law principles).
B. These Terms and the Quote constitutes the entire agreement between the Parties hereto, there being no prior or contemporaneous agreements, oral or written, not integrated herein. No amendment, waiver, alteration or modification of any of the provisions of these Terms, or any Quote, as the case may be, shall be binding upon either Party unless in writing and signed by a duly authorized representative of the Party against whom such amendment, waiver, alteration or modification is sought to be enforced.
C. Waiver by either Party of any breach or failure to comply with any provision of these Terms or any Quote by the other Party shall not be construed as or constitute a continuing waiver of such provision, or a waiver of any other breach of or failure to comply with any other provision of these Terms or any Quote.
D. These Terms shall apply to and bind the successors and assigns of the Parties; provided, however, that neither Party hereto may assign the Quote or these Terms, in whole or in part, or any rights granted herein without the prior written consent of the other Party. Any transfer, assignment or delegation of the Quote or these Terms or of any of the rights or duties herein granted or imposed, whether voluntary, by operation of law, or otherwise, without such consent in writing, shall be absolutely void, and at the option of the Party whose written consent should have been obtained, the Quote may be terminated.
E. This Section 14 and Sections 1, 2, 5, 6, 8, 9, 10, 11 and 12 shall survive any termination of the Quote.
F. Each undersigned individual signing on behalf of a Party represents and warrants that he or she is fully authorized to execute the Quote for and on behalf of their respective Party and that such signature creates a binding and enforceable obligation of such Party. If Customer is entering into the Quote for services to be rendered to its customer or any third party, Customer represents and warrants that it has been authorized by its customer or third party to engage GWS to perform the Services and supply the Goods hereunder in accordance with these Terms, including the limitations on liability set forth herein. Each Party agrees to defend, indemnify and hold the other Party harmless against any and all claims arising out of breach of this Section.