Vento Masonry and Cement Company, Inc., a Michigan corporation (the “Company”) and Customer agree, pursuant to the Construction Agreement (the “Agreement”), that Company shall provide construction services to Customer on the following terms and conditions:
1. Effective Date of Service.
The construction services under the Agreement shall begin on the dated listed on the Agreement (the “Effective Date of Service”), and the term of the agreement shall be as provided under the Agreement. The Agreement shall not be effective unless executed by a duly authorized representative of Company and by a duly authorized representative of Customer.
2. Controlling Document.
The Agreement shall be, in all respects, the controlling document. Any agreement provided previously provided will be superseded by the agreement. The Agreement may be modified or amended only by writing appropriately identified as a modification or amendment hereof and duly executed by both parties. If a purchase order or similar instrument is issued by Customer, such instrument shall be considered to be for Customer’s use only and any provisions contained therein shall be inapplicable as the Agreement is the controlling document defining terms and conditions for construction services.
3. Term of Agreement: Termination.
The Agreement shall begin on the Effective Date of Service and shall continue for the term listed under the Agreement. Thereafter, the Agreement will remain in effect until terminated. Effective at any time after the initial term, Company may terminate the Agreement on prior written notice to the Customer.
4. Limitation of Liability.
COMPANY SHALL NOT BE RESPONSIBLE FOR FAILURE TO PROVIDE SERVICE HEREUNDER: (i) AT LOCATIONS DEEMED HAZARDOUS TO THE HEALTH OR SAFETY
OF COMPANY'S EMPLOYEES OR REPRESENTATIVES OR (ii) WHERE SUCH FAILURE RESULTS FROM CAUSES BEYOND THE REASONABLE CONTROL OF COMPANY, INCLUDING BUT NOT LIMITED TO ACTION OR INACTION OF THE CUSTOMER, ACTS
OF GOD, ACTS OF GOVERNMENT, STRIKES OR LABOR DISPUTES (OTHER THAN BY COMPANY'S OWN EMPLOYEES), FAILURE OF TRANSPORTATION, FIRE, FLOOD OR OTHER CASUALTY, AND FAILURE OF SUBCONTRACTORS OR SUPPLIERS. NO
RECOVERY OF ANY KIND AGAINST COMPANY OR ITS AGENTS FOR BREACH OF THE AGREEMENT SHALL BE GREATER IN AMOUNT THAN THE COST OF SERVICES RENDERED AND/OR MATERIAL PROVIDED. COMPANY OR ITS AGENTS SHALL
HAVE NO LIABILITY UNDER THE AGREEMENT FOR DAMAGES ARISING FROM MANUFACTURING, DESIGN OR INSTALLATION DEFECTS OF EQUIPMENT SERVICED, OR UNAUTHORIZED USE OF CUSTOMER'S SYSTEM AND/OR MATERIAL
BY PERSONS OTHER THAN EMPLOYEES OF COMPANY OR ITS AGENTS. COMPANY IS FULLY LICENSES AND INSURED AND IS A MEMBER OF THE BETTER BUSINESS BUREAU. COMPANY IS NOT RESPONSIBLE FOR DAMAGE TO SPRINKLER SYSTEM
THAT IS NOT CLEARLY MARKED BY CUSTOMER PRIOR TO CONSTRUCTION. CUSTOMER HAS THREE BUSINESS DAYS TO CANCEL CONTRACT BY NOTIFYING COMPANY IN WRITING. IF CUSTOMER CANCELS CONTRACT AFTER THREE DAYS,
THE DEPOSIT WILL BE RETAINED BY COMPANY AS LIQUIDATED DAMAGES. PATTERN AND COLOR IS CUSTOMER’S CHOICE. VARIATION IN COLOR MAY OCCUR DUE TO THE DIFFERENCE IN SAND, COURSE AGGREGATES AND WATER-
CEMENT RATIO. COMPANY IS NOT RESPONSIBLE FOR DAMAGE TO CONCRETE FROM USE OF SALT, OR HAIRLINE CRACKS THAT MAY DEVELOP IN CONCRETE, OR SOFT AGGREGATE POPOUTS.
The Customer will indemnify and hold Company harmless from any damages, costs or expenses finally awarded against Company based upon a claim for personal injury, death or property damage caused by the negligence or willful misconduct of the Customer in the performance of the Agreement and not caused by the negligence or willful misconduct of Company, its agents or invitees.
6. Force Majeure, Customer Changes and Delays.
Any performance by the Company hereunder shall be subject to delays caused by an Act of God, war, riot, fire, explosion, accident, flood, sabotage, inability to obtain fuel or power, governmental laws, regulations or orders, acts or inaction of the Customer, or any other cause beyond the
reasonable control of the Company. In the event of any delay, the date(s) set forth herein and the times for performance will be extended accordingly for additional period(s) of time to cover such
period(s) of delay. Changes to the Materials and/or contracted services by the Customer, if received and accepted by the Company sufficiently in advance, will be implemented by the
Company’s best efforts; however, delay may result and Customer agrees to pay any resulting added charges. Cumulative delays requested by Customer of more than twenty (20) days will result in
increased associated labor and material costs, plus increases instituted by the Company applicable to all customers and any applicable material shortages.
Neither the Agreement nor the obligations arising hereunder may be assigned by Customer or Company without the prior written consent of the other party. Any prohibited assignment shall be null and void.
Any notice to Company hereunder shall be sent by registered mail to: Vento Masonry and Cement Company, Inc., 36694 Clarita Street, Livonia, Michigan 48152.
The Agreement, as it may be amended from time to time, shall be governed by and construed in accordance with the substantive and procedural laws of the State of Michigan without giving effect to the principles of conflict of laws. Jurisdiction and venue shall be appropriate in the 16th District Court of Livonia, Michigan, or the Circuit Court of Wayne County, Michigan, or the United States District Court for the Eastern District of Michigan, Southern Division. Failure of either party to enforce any right(s) hereunder shall not constitute a waiver of such right(s). Company reserves the right to charge interest on overdue accounts at the rate of eighteen (18%) percent per annum or the maximum lawful rate, whichever is lower. The Agreement cancels and supersedes any prior Agreement for construction covered hereunder.
10. Entire Agreement.
CUSTOMER, HAVING CAREFULLY READ ALL OF THE PROVISIONS OF THE AGREEMENT, ACKNOWLEDGES RECEIPT OF A COPY OF THE AGREEMENT, AND ALL APPLICABLE TERMS AND CONDITIONS (found at www.ventoconcrete.com) WHICH TOGETHER ARE THE FINAL EXPRESSION OF THE AGREEMENT OF THE PARTIES RELATED TO THE SUBJECT MATTER HEREOF, AND THE COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS AGREED UPON. ALL PRIOR AGREEMENTS AND UNDERSTANDINGS BEING MERGED HEREIN, AND THAT THERE ARE NO REPRESENTATIONS, WARRANTIES OR STIPULATIONS, EITHER ORAL OR WRITTEN, NOT HEREIN CONTAINED.