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TERMS & CONDITIONS

 

  CONSTRUCTION AGREEMENT

 

 

BACKGROUND

 

 A. The Client is of the opinion that the Contractor has the necessary qualifications, experience, and abilities to provide the services to the Client.

 

 

 

B. The Contractor is agreeable to providing such services to the Client on the terms and conditions set out in this contract and the quote form provided.

 

 

 

IN CONSIDERATION OF the matters described above and of the mutual benefits and obligations set forth in this Contract, the receipt and sufficiency of which consideration is hereby acknowledged, the Client and the Contractor (individually the “Party” and collectively the “Parties” to this Contract) agree as follows:

 

  

 

 

 

SERVICES PROVIDED

 

 

 

  1. The Client hereby agrees to engage the Contractor to provide the Client with the following services (the “Services”):

 

 

 

  • Fulfill the scope of work identified in the bid documents and/or quote provided

 

 

 

  1. The Services will also include any other tasks or services which both Parties may agree to in writing. The Contractor hereby agrees to provide such Services to the Client.

 

 

 

TERM OF CONTRACT

 

 

 

  1. The term of this Contract (the “Term”) will begin on the date of this Contract and will remain in full force and effect until the completion of the Services, subject to earlier termination as provided in this Contract. The Term may be extended with the written consent of the Parties.

 

 

 

PERFORMANCE

 

 

 

  1. The parties agree to do everything necessary to ensure that the terms of this Contract take effect.

 

 

 

CURRENCY

 

 

 

  1. Except as otherwise provided in this Contract, all monetary amounts referred to in this Contract are in USD (US Dollars).

 

 

 

PAYMENT/COMPENSATION

 

 

 

  1. Payment shall be made to the Contractor upon the completion of the work set forth in the quote provided and this Contract but no later than twenty-one (21) calendar days after the invoice is submitted by the Contractor to the Client.

 

  

 

 

 

  1. The Client agrees that prior to the commencement of work by the Contractor that the Client has the sufficient means or methods to pay the Contractor in full for the work described herein this Contract within the timeframe established by this Contract.

 

 

 

  

 

  1. The Contractor will charge the Client for the Services as follows (the “Compensation”):

 

 

 

  • The client will pay the amount shown in the bid documents or quote provided by the contractor, whichever is applicable to the Client.

 

 

 

 9. Invoices submitted by the Contractor to the Client shall be paid to the Contractor within 21 calendar days after receipt.

 

 

 

 

 

  1. In the event that the Contract is terminated by the Client prior to completion of the Services but where the Services have been partially performed, the Contractor will be entitled to payment of costs incurred to the Contractor (such as: mobilization costs, permitting costs, material costs, sub-contractor costs, labor costs, and equipment costs) provided that there has been no breach of contract on the part of the Contractor.

 

 

 

 

 

  1. In the event that the Contract is terminated by the Client prior to completion of the Services, a detailed expense sheet detailing the costs incurred to the Contractor shall be submitted to the Client. The Client shall have 21 days upon receipt to make full payment of the costs incurred to the Contractor.

 

 

 

 

 

  1. Methods of payments accepted shall include: cash, valid bank check, wire transfer, or cashier’s check. 

 

 

 

REIMBURSEMENT OF EXPENSES

 

 

 

  1. The Contractor will be reimbursed from time to time for reasonable and necessary expenses incurred by the Contractor in connection with providing the Services.

 

 

 

 

 

INTEREST ON LATE PAYMENTS

 

 

 

  1. Interest payable on any overdue amounts under this Contract is charged at the maximum rate enforceable under applicable law.

 

 

 

CONFIDENTIALITY

 

 

 

  1. Confidential information (the “Confidential Information”) refers to any data or information relating to the business of the Client which would reasonably be considered to be proprietary to the Client including, but not limited to, accounting records, business processes, and client records and that is not generally known in the industry of the Client and where the release of that Confidential Information could reasonably be expected to cause harm to the Client.

 

 

 

 

 

  1. The Contractor agrees that the will not disclose, divulge, reveal, report, or use, for any purpose, any Confidential Information which the Contractor has obtained, except as authorized by the Client or as required by law. The obligations of confidentiality will apply during the Term and will survive indefinitely upon termination of this Contract.

 

 

 

 

 

  1. All written and oral information and material disclosed or provided by the Client to the Contractor under this Contract is Confidential Information regardless of whether it was provided before or after the date of this Contact or how it was provided to the Contractor.

 

 

 

 

 

  1. The same protections made for the Client in this Contract shall be made for the Contractor.

 

 

 

CAPACITY/INDEPENDENT CONTRACTOR

 

 

 

  1. In providing the Services under this Contract it is expressly agreed that the Contractor is acting as an independent contractor and not as an employee. The Contractor and the Client acknowledge that this Contract does not create a partnership or joint venture between the, and is exclusively a contract for service. The Client is not required to pay, or make any contributions to, any social security, local, state or federal tax, unemployment compensation, workers’ compensation, insurance premium, profit-sharing, pension or any other employee benefit for the Contractor during the Term. The Contractor is responsible for paying, and complying with reporting requirements for, all local, state, and federal taxes related to payments made to the Contractor under this Contract.

 

 

 

RIGHT OF SUBSTITUTION

 

 

 

  1. Except as otherwise provided in this Contract, The Contractor may, at the Contractor’s absolute discretion, engage a third party sub-contractor to perform some or all of the obligations of the Contractor under this Contract and the Client will not hire or engage any third parties to assist with the provision of the Services.

 

 

 

 

 

  1. In the event that the Contractor hires a sub-contractor:

 

  • The Contractor will pay the sub-contractor for its services and the Compensation will remain payable by the Client to the Contractor
  • For the purposes of the indemnification clause of this Contract, the sub-contractor is an agent of the Contractor.

 

 

 

AUTONOMY

 

 

 

  1. Except as otherwise provided in this Contract, the Contractor will have full control over working time, methods, and decision making in relation to provision of the Services in accordance with the Contract. The Contractor will work autonomously and not at the direction of the Client. However, the Contractor will be responsive to the reasonable needs and concerns of the Client and make all reasonable changes to working time, methods, and decision making as warranted by the Contractor.

 

 

 

EQUIPMENT

 

 

 

  1. Except as otherwise provided in this Contract, the Contractor will provide at the Contractor’s own expense, and all tools, machinery, equipment, raw materials, supplies, workwear and any other items or parts necessary to deliver the Services in accordance with the Agreement/Contract.

 

 

 

NO EXCLUSIVITY

 

 

 

  1. The Parties acknowledge that this Contract is non-exclusive and that either Party will be free, during and after the Term, to engage or contract with third parties for the provision of services similar to the Services.

 

 

 

NOTICE

 

 

 

  1. All notices, requests, demands or other communications required or permitted by the terms of this Contract will be given in writing and delivered to the Parties at the following addresses:

 

 

 

 

 

  1. Client

 

 

 

 

 

__________________________________________________________

 

 

 

  1. Black Water Paving LLC

 

 

 

1400 Bud Graham Rd., Galivants Ferry, SC 29544

 

 

 

 

 

or to such other address as either Party may from time to time notify the other, will be deemed to be properly delivered (a) immediately upon being served personally, (b) two days after being deposited with the postal service if served by registered mail, or (c) the following day after being deposited with an overnight courier.

 

 

 

INDEMINIFICATION

 

 

 

  1. Except to the extent paid in settlement from any applicable insurance policies, and to the extent permitted by applicable law, each Party agrees to indemnify and hold harmless the other Party, and its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever which result from or arise out of any act or omission of the indemnifying party, its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with this Contract. This indemnification will survive the termination of this Contract.

 

 

 

MODIFICATION OF CONTRACT OR SCOPE OF WORK

 

 

 

  1. Any amendment or modification of this Contract or additional obligation assumed by either Party in connection with this Contract will only be binding if evidenced in writing signed by each Party or an authorized representative of each Party.

 

 

 

  1. Any change made to the scope of work or agreed upon work listed in the quote or bid documents that will alter the original scope of work must be agreed upon in writing by both Parties. Prior to the commencement of such work, a change order must be formed describing the work and change in pricing which must then be signed by both Parties agreeing to the work and a change in pricing, if necessary. The work described in the Change Order will fall under the same terms and conditions made under this Contract for the Term of this Contract.

 

 

 

TIME OF THE ESSENCE

 

 

 

  1. Time is of the essence in this Contract. No extension or variation of this Contract will operate as a waiver of this provision.

 

 

 

ASSIGNMENT

 

 

 

  1. The Contractor will not voluntarily, or by operation of law, assign or otherwise transfer its obligations under this Contract without the prior written consent of the Client.

 

 

 

ENTIRE AGREEMENT

 

 

 

  1. It is agreed that there is no representation, warranty, collateral agreement or condition affecting this Contract except as expressly provided in this Contract.

 

 

 

ENUREMENT

 

 

 

  1. This Contract will ensure to the benefit of and binding on the parties and their respective heirs, executors, administrators and permitted successors and assigns.

 

 

 

TITLES/HEADINGS

 

 

 

  1. Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Contract.

 

 

 

GOVERNING LAW / VENUE

 

 

 

  1. The Parties agree that, in the event of litigation resulting from any breach of this Contract, jurisdiction and venue for such litigation shall lie in the County where the Project is located.

 

 

 

SEVERABILITY

 

 

 

  1. In the event that any of the provisions of this Contract are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder Contract.

 

 

 

WAIVER

 

 

 

  1. The waiver by either Party of a breach, default, delay or omissions of any of the provisions of this Contract by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.

 

 

 

WARRANTY

 

 

 

  1. The Contractor warrants the Work against defects in workmanship and materials for a period of 12 months after the contract date.

 

 

 

 

 

  1. The warranty does not take effect if the Client is in default of this Contract or the effects of normal damages brought by wear and tear, caused by the faulty maintenance of the Client.

 

 

 

 ALTERNATIVE DISPUTE RESOLUTION (ADR)

 

39. Dispute Resolution

 

If a dispute arises out of this Agreement, the Parties shall endeavor to settle the dispute first through direct discussions.  If the dispute cannot be settled through direct discussions, either party may serve on the other party a Request for Mediation, and the parties shall then endeavor to settle the dispute through mandatory pre-litigation mediation.  The Parties agree to conclude such mediation within sixty (60) days of the serving of the Request for Mediation.  Any dispute not resolved by direct discussions or mediation shall be decided solely by bench trial in the circuit court, common pleas of Horry County, South Carolina.  The Parties expressly waive their rights to a jury trial in relation thereto.  In the event of any litigation, the prevailing party shall have the right to collect from the non-prevailing party its attorney’s fees and costs incurred relating to both mediation and litigation.

 

ATTORNEY’S FEES

40.  In the event a dispute arises out of the Contractor’s pursuit of collection of past due invoices from the Client, the Client shall pay any and all attorneys’ fees, costs, and other expenses incurred by the Contractor.