TERMS AND CONDITIONS OF SERVICE
1. Agreement. Unless otherwise agreed in a written document signed by the General Manager of Take Off Professionals, LLC (“TOPS”), these Terms and Conditions of Service (“Terms”) govern the purchase of services (“Services”) from TOPS by any individual or entity that purchases such Services from TOPS (“Client”). TOPS hereby rejects the terms of any purchase order or other document submitted by Client, unless the document is signed by the General Manager of TOPS. The placing of an order with TOPS or the receipt or acceptance of Services by Client constitutes Client’s acceptance of these Terms exactly as written.
2. Order and Delivery of Services. All orders for Services are subject to credit approval and final acceptance by TOPS in its sole discretion. If Client requests partial shipment of its order for Services, payment for the partial order must be made pursuant to Section 6 below. TOPS shall have no liability for any delay in performance of Services caused by any circumstances beyond its reasonable control, including, but not limited to, delays caused by acts of God, acts of war or terrorism, fire or other casualty, storms or adverse weather, strikes, labor shortages or disturbances, shortages of materials, manufacturer delays, theft or vandalism, transport and handling accidents, or revisions to laws, regulations or governmental requirements.
3. Cancellation. Client may cancel all or part of any purchase order for Services once a purchase order is issued to TOPS only if written notice of cancellation is received by TOPS at least 30 days before the scheduled delivery date of the Services. In such instance, Client shall pay for any special work or customization performed by TOPS or its suppliers prior to TOPS’s receipt of the written cancellation notice.
5. Pricing. Unless otherwise set forth on a written quote issued by TOPS (“Quote”), the labor rates for Services shall be TOPS’s standard labor rates for the applicable type of Service (site data prep, road data prep, quantity take-offs, virtual design and construction services, or specialty rates, as applicable) in effect at the time the Services are performed. Pricing for future orders is subject to change without notice. Client will promptly pay to TOPS any taxes that TOPS is required to collect with respect to the purchase of Services, including, but not limited to, value added, personal property, sales, use, and similar taxes (“Taxes”). For any Taxes from which Client claims exemption, Client shall provide TOPS with properly completed exemption certificates and any documentation needed to validate the exemption. If Client fails to provide an appropriate exemption certificate and supporting documentation, as determined by TOPS, Client will remain liable for all such Taxes and will indemnify TOPS for any liability related to the same.
6. Payment Terms. For Clients with an open credit account with TOPS, payments are due Net 30 from date of invoice. For Clients who do not have an open credit account with TOPS, payment is due upon completion of Services. TOPS may, in its sole discretion, at any time: (a) revoke credit; (b) modify terms and conditions of credit; (c) require payment in advance; and/or (d) withhold completed Services or scheduled Services until receipt of payment. If Client fails to pay for Services as and when due, Client shall pay a late charge of 1.5% of the invoice balance each month until charges are paid in full, and Client shall pay TOPS all reasonable attorneys’ fees and collection costs incurred by TOPS. In addition to any other right of set-off or recoupment TOPS has under applicable law, Client agrees that, with respect to any amounts due from Client or Client’s affiliates to TOPS or TOPS’s affiliates, TOPS and its affiliates may set-off such amounts against any amounts owing to Client or Client’s affiliates.
7. Warranties.
(a) Services. If Client is purchasing Services from TOPS, the Services will be completed in a good and workmanlike manner and will meet the manufacturer’s specifications at the time the Services are completed. TOPS makes no further warranty, express or implied, with respect to Services once the Services have been accepted by Client.
(b) WARRANTY DISCLAIMER. TOPS makes no warranty, express or implied, with respect to any Services other than the foregoing warranties, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose or any implied warranties that may arise from the course of dealing between the parties. To the maximum extent permitted by law, all such warranties are hereby disclaimed by TOPS and waived by Client.
8. Use of Data. Client must treat as confidential all drawings and data submitted by TOPS pertaining to price, size, and design. Client may not give or show such drawings or data to others under any circumstances, unless specifically approved by the General Manager of TOPS in writing. All such drawings and data remain the property of TOPS.
9. Indemnification. Each party agrees to defend, indemnify and hold harmless the other party for, from and against any third party claims related to the Services to the extent such third party claims (including, but not limited to claims related to the death or injury of any person(s) or damage to or destruction of any real or personal property) are caused by the indemnifying party’s negligent acts or omissions, subject to the limitations set forth in Section 10 below.
10. Liability Limitation. In no event shall either party be liable, whether based in contract, warranty, indemnity, tort, strict liability or any other theory of law or equity, for any special, incidental, indirect, punitive, exemplary or consequential damages, including, but not limited to, lost profits, loss of use of property or equipment, downtime, loss of third party contracts or lost production, regardless of whether or not such party was advised of the possibility of such damages. In addition, TOPS’s maximum aggregate liability (whether in contract, warranty, indemnity, tort, strict liability or any other theory of law or equity) for damages or loss, howsoever arising or caused, shall in no event exceed the amount Client paid to TOPS for the Services to which the liability relates. The parties recognize that the pricing associated with Services reflects this allocation of risk and is the basis of the bargain between the parties. The foregoing limitations shall be valid and enforceable, notwithstanding any alleged failure of essential purpose of the limited remedies set forth herein. Any and all claims arising out of or relating to the Services will be barred unless a legal proceeding is commenced within one (1) year from completion of the Services.
11. Choice of Law. These Terms shall be governed by and construed in accordance with the laws of the State of Arizona without giving effect to conflict of law provisions. The parties agree that exclusive jurisdiction and venue for any proceeding at law or in equity will be in the state or federal courts located in Maricopa County, Arizona.
12. General Provisions. Client may not assign Client’s rights or obligations hereunder without TOPS’s prior written consent, and any such attempted assignment will be void. If any provision in these Terms is found to be invalid, unlawful or unenforceable, the remaining provisions in these Terms shall remain in full force and effect. A party’s waiver of any breach will not constitute a waiver of any different or subsequent breach. No employment, agency, joint venture, or similar arrangement is created or intended between Client and TOPS. TOPS is an EEO/Affirmative Action Employer. Client warrants that the invoiced Services will be used for business or agricultural purposes and not for personal, family or household purposes.
Rev. 10/3/2019
PURCHASE ORDER TERMS AND CONDITIONS
1. Take Off Professionals, LLC (“TOPS”) is issuing a Purchase Order to the vendor identified thereon (“Vendor”) to purchase certain goods and/or services as more particularly described thereon (the “G&S”). These Purchase Order Terms and Conditions (“Terms”) govern, and are an essential part of, the Purchase Order between TOPS and Vendor. For ease of reference, the Purchase Order and the Terms are collectively referred to herein as the “PO.”
2. The PO governs the rights and liabilities of TOPS and Vendor and is the sole and exclusive agreement of the parties with respect to the G&S (unless a separate agreement relating specifically to the G&S is executed by the General Manager of TOPS). TOPS hereby rejects the terms of any document submitted by Vendor; these Terms may not be modified by any document issued by Vendor or by the parties’ course of dealing, custom or usage, but only by an agreement signed by the General Manager of TOPS. These Terms shall apply even where TOPS accepts delivery of G&S without reservation, having knowledge of conflicting or deviating Vendor terms and conditions. Acknowledgement, acceptance, shipment or performance of any part of the PO by Vendor constitutes acceptance of the entire PO, including these Terms, exactly as written.
3. If the PO is for procurement of ongoing G&S from Vendor over a period of time, these Terms shall apply to all such G&S and invoices for such G&S shall be submitted to TOPS not more frequently than once every thirty days. Payment terms for undisputed amounts are net thirty days from TOPS’ acceptance of the G&S or receipt of invoice, whichever is later. TOPS shall have the right to terminate the PO, or any portion thereof, without cause on ten days’ notice. The applicable PO number must appear on all invoices, packages and correspondence pertaining to the PO. Whether or not separately stated on Vendor’s invoice or on the PO, Vendor shall be responsible for remitting to the appropriate taxing authority any state or local transaction privilege tax and/or sales tax related to the G&S provided by Vendor. Any other federal, state, or local taxes of any type assessed on Vendor due to the provision of the G&S shall be the sole responsibility of Vendor.
4. Vendor must pack all goods delivered pursuant to the PO in accordance with good commercial practices. Unless otherwise specifically provided on the PO, Vendor must ship goods in the most cost-effective manner, FOB TOPS’ designated delivery point. Time is of the essence with respect to delivery or completion of the G&S, as applicable. If the G&S are not delivered or completed by the date stated in the PO, TOPS will have all rights and remedies available at law and in equity.
5. All G&S are subject to inspection, testing, approval and acceptance by TOPS within a reasonable time after delivery or performance. TOPS’ payment of an invoice shall not constitute acceptance of the applicable G&S, and TOPS’ inspection, testing, approval, acceptance or use of the G&S shall not affect Vendor’s obligations and warranties herein. TOPS may reject any G&S that are, in TOPS’ judgment, defective and/or do not conform to the terms or specifications of the PO. If G&S are non-conforming, TOPS will have all rights and remedies available at law and in equity.
6. Vendor shall not invoice TOPS for any charges in excess of those set forth on the PO. TOPS may request changes, additions, or deletions to the PO by notice to Vendor. If such changes, additions or deletions would require additional charges or alter the delivery or completion schedule, Vendor must obtain prior written approval from TOPS before proceeding with the changes or TOPS will have no obligation to pay such additional charges or accept such schedule alterations. TOPS shall have the right to audit Vendor records related to the G&S Vendor is providing to TOPS.
7. Vendor warrants to TOPS, its successors, assigns, employees, agents and clients, that all G&S will: (a) conform to the terms of the PO and all applicable samples, drawings, standards, specifications, performance criteria and other descriptions; (b) be merchantable, safe and appropriate for the purpose for which such G&S are normally used; (c) not infringe upon the rights of any third parties; (d) comply with all applicable federal, state and local laws and regulations; (e) not be subject to any liens, encumbrances, security interests, or other third party claims (Vendor must deliver written lien releases if requested by TOPS); (f) be new (unless otherwise noted on the PO); and (g) with respect to services, be performed diligently, in a good and workmanlike manner in accordance with the highest standards in Vendor’s trade or industry.
8. Before commencing work for TOPS, Vendor must obtain, and must maintain in effect, workers’ compensation insurance (in accordance with applicable law), employer’s liability insurance (not less than $1,000,000 per person, per accident), automobile liability insurance (owned, non-owned and hired, with a combined single limit of $1,000,000), and general liability insurance ($1,000,000 per occurrence, $2,000,000 general aggregate), all in accordance with TOPS’ standard insurance requirements. Vendor’s required policies shall be primary, and any insurance maintained by TOPS shall be excess and non-contributory. Vendor must provide an insurance certificate to TOPS evidencing all of the foregoing before commencing work for TOPS. Additionally, Vendor’s required policies must be endorsed to name TOPS parties as additional insureds and to include waivers of subrogation, and such endorsements shall be provided to TOPS along with the insurance certificate. TOPS’ standard insurance requirements do not limit or qualify the liabilities, obligations, warranties or indemnities of Vendor hereunder.
9. Vendor shall defend, indemnify, and hold harmless TOPS, its subsidiaries and affiliated companies, and their respective owners, officers, directors, employees and agents for, from and against all claims, liabilities, losses, demands, penalties, forfeitures, suits, damages, judgments, costs and expenses, including attorneys’ fees, expert witness fees and costs arising out of or related to the PO, the G&S or the Vendor’s actions or inactions related to the same. In no event shall TOPS be liable for any special, incidental, indirect, punitive, exemplary or consequential damages, regardless of whether or not TOPS was advised of the possibility of such damages.
10. In the event of any breach of the PO by Vendor, TOPS shall have all rights and remedies available at law and in equity in addition to any rights or remedies specifically described herein, including but not limited to one or more of the following: (a) TOPS may reject non-conforming G&S, and Vendor shall refund the price of such non-conforming G&S and all costs related thereto; (b) TOPS may require Vendor to replace or correct any such non-conforming G&S at no additional cost to TOPS; (c) TOPS may replace any non-conforming G&S from another source, and/or take corrective action with respect to any non-conforming G&S, and obtain reimbursement from Vendor for all costs incurred by TOPS in connection therewith; and (d) TOPS may terminate the PO.
11. All information TOPS provides to Vendor that is not available to the general public, all specifications and documents prepared by Vendor in connection the PO, and all other non-public information that Vendor obtains as a result of the PO constitute confidential information of TOPS. Without prior written consent by a General Manager of TOPS, Vendor shall not (a) disclose or use TOPS’ confidential information for any purpose other than performing the PO; (b) announce, publicize or discuss with third parties the subject matter of the PO; or (c) include TOPS’ name or trademarks in any marketing materials. All specifications, drawings, schematics, technical information, data, tools, test equipment, and other materials furnished by TOPS to Vendor shall remain TOPS’ property. All specifications, drawings, schematics, technical information, data, tools, test equipment, goods and other materials, and work product and intellectual property rights in all of the foregoing, generated in whole or in part by Vendor in relation to the PO (“Property Rights”), will be considered work for hire and will constitute TOPS’ sole and exclusive property, whether delivered by Vendor to TOPS or not, and shall be provided to TOPS immediately upon request. If any Property Rights are not considered works for hire owned by TOPS by operation of law, Vendor hereby assigns all right, title, and interest in such Property Rights, including, but not limited to, all copyrights in such Property Rights, to TOPS.
12. Unless exempt, this contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit 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, 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 individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. If applicable, the contractor and subcontractor shall also abide by the requirements 41 CFR § 61-300.10 regarding veterans’ employment reports and 29 CFR Part 471, Appendix A to Subpart A regarding posting a notice of employee rights.
13. Vendor must abide by all TOPS’ rules and regulations while on TOPS’ premises and while fulfilling its obligations under the PO, including, but not limited to, all rules and regulations related to safety, health and hazardous materials. Prior to bringing any hazardous materials onto TOPS’ premises, Vendor shall provide written notice to TOPS and provide TOPS with material safety data sheets and any other documentation reasonably requested by TOPS.
14. The PO is to be construed and interpreted in accordance with Arizona law, without giving effect to its conflict of law provisions. Vendor irrevocably consents to exclusive jurisdiction and venue in Maricopa County, Arizona. The PO shall be construed without regard to any presumption or rule requiring construction against the party causing such instrument or any portion thereof to be drafted. Vendor shall not assign or subcontract the PO, or any portion thereof, without the prior written approval of the General Manager of TOPS, and such approval may be withheld in TOPS’ sole and absolute discretion. Any attempted assignment or subcontract in violation of the foregoing shall be void and of no force and effect. Vendor acknowledges and agrees that it is an independent contractor with respect to TOPS and that its employees, representatives and any permitted subcontractors are not agents or employees of TOPS, regardless of where they perform services. If any provision of the PO is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not affect the validity of the remaining provisions. If TOPS fails to insist on performance of any term or condition, or fails to exercise any right or privilege hereunder, such failure shall not constitute a waiver of such term, condition, right or privilege. No provision of the PO may be waived or modified, except in a writing signed by the General Manager of TOPS. The PO is non-exclusive; TOPS reserves the right to obtain like goods and/or services from other sources.
TOPS is an EEO/Affirmative Action Employer.
TOPS is committed to working with and providing reasonable accommodation to individuals with disabilities. If, because of a medical condition or disability, you need a reasonable accommodation for any part of the employment process, please e-mail greatjobs@empire-cat.com or call (480) 633-5440 and let us know the nature of your request and your contact information.
Rev. 10/1/2019