QUOTATION TERMS AND CONDITIONS
1. “Fabricator” shall mean Trinity Steel Fabricators, Inc., and “Customer” shall refer to the entity to whom this Proposal and/or Work Order was submitted.
2. Structural steel will be furnished to this Project in accordance with the terms and conditions of the bidding documents and the American Institute of Steel Construction Code of Standard Practice for Buildings and Bridges, current edition.
3. DRAWINGS, PLANS AND SPECIFICATIONS. Fabricator shall be entitled to rely upon the plans and specifications which were provided by Customer. If the design is not complete at the time of this bid, released for construction drawings will be required before detailing, material purchases, or fabrication can commence and Fabricator reserves the right to additional compensation.
4. TIME. The project schedule and any modification shall allow Fabricator a reasonable time to complete its Work in an efficient manner considering the contract completion date or times set forth in this contract. Fabricator shall not be required to commence or continue work unless sufficient areas are ready to ensure continuous work. Customer shall promptly provide the Fabricator with all schedules of work and with any other information necessary for the proper schedule of Fabricator’s Work. Fabricator will not be bound by any schedule that was not included in bidding documents, or to any schedule revisions absent prior written agreement. Fabricator shall be entitled to an equitable adjustment in the price of the Work, including but not limited to, any increased costs of labor, including overtime, or materials, resulting from any change of schedule, acceleration, out of sequence work or delay caused by others for whom Fabricator is not responsible.
5. FORCE MAJEURE. Notwithstanding anything to the contrary in these Terms and Conditions, deliveries and/or performance may be suspended or delayed by acts of God; acts of civil or military authorities; war, riot; fire, or explosion; flood; sabotage or acts of terrorism; lack of adequate fuel, power, raw materials, labor, containers or transportation facilities; changes in applicable government laws, regulations; failure of machinery or apparatus; labor disputes; acts or omissions of Customer, its employees, officers or agents, or any other event, whether or not of the class or kind enumerated herein, beyond the reasonable control of Fabricator which makes impractical the performance of the Work, or the manufacturer, transportation, or shipment of the products or of a material or other resource upon which the manufacturer or transportation of the products depend. Fabricator reserves the right, in its sole discretion, to allocate inventories and current production and to substitute suitable materials when, in its opinion, circumstances warrant such allocation or substitution. Fabricator shall be entitled to an equitable adjustment in the price and the time for the performance of the Work resulting from any Force Majeure event.
6. ESCALATION. Fabricator’s material prices are based on current prices at the time of the Proposal. Any significant price increases (meaning a price increase exceeding 5%) in materials necessary to perform the Work, that occur during the period of time between the date of this Proposal and Substantial Completion of the Project, shall cause the contract price to be equitably adjusted by an amount reasonably necessary to cover any such increase.
7. FREIGHT. Freight prices are subject to change. Freight quotes are the sum of a set price based upon mileage and a fuel surcharge which is the U.S. D.O.T. National average price of diesel fuel. Any change in the fuel surcharge can lower or raise the cost of freight.
8. TIME OF PAYMENT. Payment must be made to Fabricator within thirty (30) days of the date of Fabricator’s invoice. Payments not received when due shall incur service charges at the rate of one and one-half percent (1 ½ %) per month (18% per annum) until paid. If Customer fails to pay Fabricator, in accordance with this provision, Fabricator may, without prejudice to any other available remedies, limit or cancel the credit of Customer, suspend further deliveries or performance, or terminate this contract. The contract amount shall be increased, by appropriate adjustment, by the amount of Fabricator’s demobilization, delay and remobilization costs. Fabricator shall be entitled to recover its costs and attorneys fees incurred for any non-payment of amounts due.
9. FAILURE TO GIVE ADEQUATE ASSURANCES. If Customer’s financial condition gives Fabricator, in its judgment, reasonable grounds for insecurity concerning Customer’s ability to perform its obligations under the Contract, Fabricator may require full or partial cash payment in advance or may suspend any further deliveries or performance until Customer’s financial condition materially improves and all unpaid sums due to Fabricator have been paid.
10. RELEASES. Any form or release wherein the Fabricator purports to release the Customer, Owner or Design Professional is hereby qualified by the following language, whether or not the Fabricator specifically adds the language: “This release shall apply only to work for which payment has been received in full by Fabricator; and it shall not apply to retainage, unbilled changes, or claims or amounts not yet paid.” The Fabricator will not agree to an advance waiver of its lien rights, its right to delay damages, its right to consequential damages, or to withholding payment for disputes between Contractor and Owner unrelated to Fabricator’s work.
11. RETAINAGE. Customer shall be permitted to withhold 10% retainage for this project until it is 50% complete. After 50% completion, Customer shall only withhold 5% of the total contract amount until substantial completion. Final payment, including release of retainage, shall be due within 30 days after completion of Fabricator’s Work.
12. CHANGE ORDERS. If conditions are encountered at the site which are concealed physical conditions which differ from those indicated in any plans, specifications, reports, surveys, or other information provided to Fabricator, then the Subcontract Price shall be equitably adjusted for such concealed or unknown conditions by Change Order upon the claim of either party.
13. TITLE AND RISK OF LOSS. Title to and risk of loss of the materials provided to the project by Fabricator shall pass to Customer upon delivery. Fabricator shall retain a security interest and right of possession in the materials until Customer makes full payment for those materials.
14. WARRANTY, LIMITATION OF LIABILITY, AND ASSUMPTION OF RISK. Fabricator agrees to correct all Work under this contract which proves to be defective in workmanship or materials. These warranties shall commence on the date of substantial completion of the Work or of a designated portion thereof and shall continue for a period of one year therefrom or for such longer periods of time as may be set forth in writing as agreed to by the Fabricator. Fabricator disclaims and Customer waives, all other warranties, express or implied, including but not limited to the warranties of habitability, merchantability, and fitness for a particular purpose. Fabricator’s liability for any action shall be limited to the Proposal Price. If Customer or Owner claims that Fabricator’s work is defective, they shall give Fabricator written notice within 5 days of when they knew or could have known of the alleged deficiency. Fabricator shall be given a reasonable opportunity to cure such alleged deficiency (and at its sole discretion Fabricator may repair or replace with equal quality any limited warranty items) upon receipt of such written notice. Failure to provide Fabricator with such notice and an opportunity to cure such alleged deficiencies shall constitute a waiver of such claims.
15. INDEMNIFICATION. To the maximum extent allowed by law, Customer shall defend, indemnify, and hold harmless Fabricator and its employees and agents against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines and other expenses (including investigation costs, litigation costs, and attorneys fees) that Fabricator may incur or be obligated to pay to the extent of Customer’s (i) negligence, (ii) violation or alleged violation of any federal, state, county or local laws or regulations, (iii) breach of this Contract, or (iv) other negligence for which Customer is responsible. Fabricator will take full responsibility for its own actions and negligence. It will not agree to indemnify any other party for the consequences of that party’s actions or negligence.
16. MEDIATION. Any claims arising out of or related to this contract shall be subject to mediation. Mediation shall be a condition precedent to arbitration. The request may be made concurrently with the filing of a demand for arbitration but, in such event, mediation shall proceed in advance of arbitration, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. The parties shall share the mediator’s fee and any filing fees equally. The mediation shall be held in Houston, TX.
17. ARBITRATION. Claims not resolved by mediation shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect. The demand for arbitration shall be filed in writing with the other party to the Contract and with the American Arbitration Association. Any arbitration arising out of or relating to this Agreement may include, by consolidation or joinder, such additional persons or entities engaged or retained by contract in connection with this project who are signatories to arbitration provisions in agreements with one or more parties to this Agreement.
18. GOVERNING LAW. The validity, interpretation and performance of this contract and any dispute connected herewith shall be governed by and construed in accordance with the laws of the state of Texas, without regard to its conflicts of law provision.
19. SUBCONTRACT DOCUMENTS. No terms and conditions contained in the contract between the Owner and Customer, if applicable, shall be binding on the Fabricator unless a copy of such terms and conditions has been furnished to Fabricator and accepted in a writing signed by the Fabricator.
20. PERFORMANCE OF WORK PRIOR TO EXECUTION OF CONTRACT. In the event that Fabricator is given a notice to proceed, directed to purchase material, or otherwise directed by Customer to commence any of the Work contemplated by this Proposal prior to the Customer signing this Proposal, Customer shall be deemed to have accepted all of the Terms and Conditions of this Proposal and/or Work Order as set forth herein. No amendment or modification of any provision of these Terms and Conditions shall be binding unless the same is in writing, signed by the party to be bound, and is specifically described as an amendment or modification of these Terms and Conditions.