Terms and Conditions

for Project Bid

 

These Terms and Conditions for Project Bid (“Terms”) shall apply to each Project Bid for construction services (“Bid”) issued by One Hat One Hand LLC, a California limited liability company (“Contractor”), and accepted by the person or entity identified as “Owner” thereunder. Contractor will only perform the Work and do business with Owner on the terms and conditions set forth in the Terms and Bid (collectively, “Contract”). Owner, upon accepting the Bid, shall be deemed to have accepted all of the Terms without modification. Any term or condition contained in any correspondence that purports to add to, or is in any way inconsistent with the Contract is expressly rejected unless such term is set forth in a formal amendment to the Contract and signed by both Owner and Contractor.

 

1. WORKMANSHIP: All of Contractor’s Work on the Project shall be executed by workers skilled in their trade and shall conform to the industry standard practice for work of its kind. The "Work" shall mean all labor, services, equipment, supplies, materials, administration and supervision necessary for Contractor to complete the Project and services contemplated under the Bid.
    

2. PAYMENT: All invoices submitted by Contractor are due upon Owner’s receipt. If for any reason not the fault of Contractor, Contractor does not receive full payment within twenty (20) days after the date of its invoice therefor, Contractor, upon giving written notice to Owner, may, in its sole discretion, stop its services until payment of the full amount owing to Contractor has been received. Payments due but unpaid shall bear interest from the date payment is due at the rate equal to the lesser of: (i) five percent (5.0%) per month, or (ii) the highest rate permitted by applicable law, until paid in full. Owner shall be responsible for all costs and expenses, including Contractor’s attorney fees, related to collection of the amounts due under the Contract.
    

3. WAIVER OF LIEN: Contractor shall furnish to Owner with each request for payment (1) a conditional partial waiver of lien covering all Work subject to such payment, and (2) an unconditional waiver of lien from any or all persons or entities furnishing labor or materials for the Project under Contractor who were to receive funds from the previous payment.  In addition, Contractor shall furnish to Owner a final waiver of lien, conditioned only upon final payment, with its request for final payment before final payment will be made.
    

4. PERMITS AND FEES: Owner shall obtain and pay for all permits and fees required by governmental bodies for completion of the Work, including, but not limited to, all permits, licenses, easements, rights-of-way, agreements and permissions necessary for Contractor’s access to the Owner’s real property for Contractor’s performance of the Work. Owner covenants that there are no restrictions, easements of covenants restricting or requiring consent for Contractor to perform the Work, and that any and all approvals have been received. 
    

5. SITE INVESTIGATION AND CONDITIONS: Owner has made known to the Contractor all information of which it is aware as to all conditions in the vicinity of the Project and other information that might assist the Contractor in properly evaluating the extent and character of the Work that might be required. Such information is the best information obtainable from the Owner and its employees, agents and consultants, through the exercise of reasonable diligence. The Contractor shall promptly, before such conditions are disturbed, notify the Owner in writing of any subsurface or latent physical conditions at the site differing materially from those indicated in the Contract documents; or previously unknown physical or other conditions at the site of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract.
   
   The Contractor shall promptly investigate the conditions and, if it finds that such conditions do so materially differ and cause an increase or decrease in the costs of, or the time required for, performance of this Contract, the Contractor and Owner shall make an equitable adjustment in the Contract price and installation timelines. However, if both Contractor and Owner cannot reach said equitable adjustment, Contractor reserves the right to terminate the Contract in accordance with these Terms.
    

6. INDEMNIFICATION: Contractor shall indemnify, defend and hold harmless Owner against any or all claims and demands for damages to property of any person, firm or individual and for personal injuries (including death) arising out of or caused by, in whole or in part, the negligence of Contractor or its agents, servants, and employees, during performance of the Work and whether the damages or injuries be sustained by any employee of Contractor, Owner, or otherwise, and whether such claims or demands arise or are made under any provision of any Workmen's Compensation Act or other law of statute, or otherwise.  Owner shall give Contractor prompt written notice of any such claims or demands and shall give Contractor the opportunity to cooperate in the defense and settlement thereof. 
   
   Owner shall indemnify, defend and hold harmless Contractor against any or all claims and demands for damages to property of any person, firm or individual, including the Work itself, and for personal injuries (including death) arising out of or caused, in whole or in part, by the negligent, act, omission or breach of the Contract by Owner or its agents, servants, and employees, arising out of the Contract and whether the damages or injuries be sustained by any employee of Contractor, Owner, or otherwise, and whether such claims or demands arise or are made under any provision of any Workmen's Compensation Act or other law of statute, or otherwise.  Owner shall give Contractor prompt written notice of any such claims or demands and shall give Contractor the opportunity to cooperate in the defense and settlement thereof.
    

7. INSURANCE: Until completion of the Work, Contractor shall secure and pay for Workman's Compensation on Contractor’s employees as required by law and shall maintain commercial general liability insurance with coverage not less than $1,000,000 per claim/in aggregate against all claims from damages for personal injury or death suffered by persons other than employees and growing out of execution of the Work.  Owner may request in writing that Contractor provide Owner with a certificate of insurance listing Owner as an additional insured on Contractor’s liability policies provided Contractor receives such written notice at least thirty (30) days prior to commencement of the Work. Contractor shall not be liable for uninsured damages or losses, or any other condition or occurrences that are not within control of Contractor.
    

8. LIMITATION OF LIABILITY; WAIVER OF CONSEQUENTIAL DAMAGES: To the fullest extent permitted by law, the total liability, in the aggregate, of Contractor and its officers, managers, employees, agents and independent professional associates and consultants, and any of them, to Owner and any one claiming by, through or under Owner, for any and all injuries, claims, losses, expenses, or damages whatsoever arising out of or in any way related to the Work, the Project or the Contract, will not exceed the total compensation received by Contractor under the Contract, or available proceeds from Contractor’s insurance, whichever is less. This limitation will apply regardless of legal theory, and includes but is not limited to claims or actions alleging negligence, errors, omissions, strict liability, breach of contract, breach of warranty of Contractor or its officers, managers, employees, agents or independent professional associates or consultants, or any of them. Further, Owner and Contractor waive claims against each other for consequential and incidental damages, including but not limited to damages for loss of profits, loss of revenues, and loss of business or business opportunities, and for claims, disputes or other matters in question arising out of or relating to the Contract, the Work and the Project.
    

9. WARRANTY: Contractor warrants that the Work will be of good quality and new unless otherwise agreed to in writing. CONTRACTOR MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN THIS SECTION 9. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED. 
    

10. CHANGES: During progress of the Work, Owner may order that additional items be performed by Contractor. Such extra work shall be specified in a written “Change Order” signed by the Owner and Contractor, and shall identify the increases to the Contract Time and Contract Sum. Increases to the Contract Sum shall be paid for at the time the Change Order is completed, unless otherwise mutually agreed to by the parties.
     

11. CONTRACT TIME: Contractor agrees to diligently pursue completion of the Work within the Contract Time, but shall not be responsible for delays for any of the following reasons: acts of neglect or omissions of Owner or Owner’s employees or Owner’s agent; acts of God; stormy or inclement weather; strikes, lockouts, boycotts or other labor union activities; extra work ordered by Owner; acts of public enemy; riots or civil commotion; inability to secure materials through regular recognized channels; imposition of government priority or allocation of materials; failure of Owner to make payments when due; delays caused by inspections and/or changes ordered by inspectors of governmental bodies concerned; or Change Orders.
     

12. SUSPENSION OF THE WORK: Contractor may suspend the Work temporarily if Owner fails to make any payment within ten (10) days after the date on which such payment is required to be made. Contractor shall be entitled to (i) an extension of the deadlines of this Contract for the same period of the suspension, and (ii) the reimbursement of the additional costs and expenses, if any, reasonably incurred and substantiated by Contractor in protecting, securing or insuring the Work, and in resumption of the Work. If Owner fails to make any payment within one month after the date on which such payment is required to be made herein Contractor shall be entitled to terminate this Contract.
     

13. TERMINATION: 
    a. Contractor may terminate performance of this Contract in the event that the Owner should become insolvent or commit a material breach or default under this Contract, including, but not limited to, failure to timely pay undisputed amounts owed to Contractor, and failure to act in good faith to remedy the same within (10) ten days after receipt of written notice of default from Contractor. Contractor shall be entitled to all damages incurred as a result of such termination, including, but not limited to, overhead and profit that would have been earned by Contractor, and any of its subcontractors, if the Project had been fully performed.
    
    b. Owner may terminate performance of this Contract for cause under the following circumstances if Contractor fails to act in good faith to remedy same within (10) ten days after receipt of written demand by the Owner: (i) Contractor becomes insolvent; (ii) Contractor refuses or neglects to supply a sufficient number of properly skilled workmen, tools, or material within Contractor’s control; or (iii) Contractor commits a material breach of this Contract. Owner shall pay Contractor for all Work performed as of the date of such termination for cause, including overhead and profit allocable to such work performed.
    
    c. In accordance with Section 16(b) below, either party may terminate performance of this Contract upon the occurrence of a Force Majeure Event (as defined below) that lasts longer than 30 days. Owner shall pay Contractor for all Work performed as of the effective date of such termination, including overhead and profit allocable to such work performed
     

14. OWNER’S OTHER CONTRACTORS/SUPPLIERS: In no event shall Contractor be liable to Owner, and Owner shall defend, indemnify and hold Contractor harmless from and against, any claims, liability, costs, expenses or damages arising from or related to, labor or materials provided by a contractor or supplier which Owner directly employs or contracts with in addition to Contractor.
     

15. OWNERSHIP OF DESIGN: Upon full payment of the Contract Sum provided under this Contract and the Bid, the Contractor hereby agrees to convey, transfer and assign to Owner, and Owner hereby agrees to accept, all of Contractor’s right, title and interest in and to the one final design of the Project outlined in the Bid and all rights to the Intellectual Property (as defined below) associated therewith (“Final Work Product”). Each party is and remains the owner of any Intellectual Property conceived, developed, first produced, or created by or for a party apart from the performance of the Project under this Contract (the “Background Intellectual Property”) and its Intellectual Property resulting directly from and authored, conceived, developed, reduced to practice or otherwise created during and following the term of this Contract (the “Independently Developed Intellectual Property”), including all artwork and concepts not selected for Final Work Product, and the parties understand and agree that, except as specifically set forth in this Contract, no license or other rights, either express or implied, are granted by either party to the other under this Contract with respect to any Background Intellectual Property or Independently Developed Intellectual Property. Each party shall decide in its sole discretion whether it protects, and shall bear all costs of protecting, its Background Intellectual Property and Independently Developed Intellectual Property. Without limiting the foregoing, Contractor reserves and retains ownership of all Generic Components (as defined below), and Contractor hereby grants to Owner a non-exclusive, fully-paid, limited license to use the Generic Components solely in connection with Owner’s use of the Final Work Product. 
    
    “Generic Components” means all inventions (whether or not patentable), works of authorship, designs, know-how, ideas, processes, methods, information and tools, including without limitation software and programming tools, and other items of Final Work Product that have been developed or created by Contractor and do not disclose Owner’s confidential information.
    
    “Intellectual Property” means all rights in ideas, inventions, works of authorship, know-how, technical information, trade secrets, pending patent applications, patents, copyrights and confidential information.
     

16. Force Majeure

a. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events “"Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemic, pandemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party.
 

b. The Impacted Party shall give notice within 3 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. Subject to Section 13(c), in the event that the Impacted Party’s failure or delay remains uncured for a period of 30 days following written notice given by it under this Section 16, either party may thereafter terminate this Agreement upon 5 days’ written notice.
 

17. MISCELLANEOUS:

a. Any capitalized term not herein defined shall have the meaning set forth in the Bid. 

b. If any provision of these Terms conflicts with the Bid, provisions of these Terms shall take precedence over the conflicting provisions in the Bid.

c. Owner may not assign any of its rights, duties or obligations under the Contract without the Contractor’s prior written consent.

d. Contractor shall operate as an independent contractor in its performance of Work pursuant to the Contract. The officers, employees and agents of one party shall not be considered officers, employees or agents of the other party for any purpose whatsoever.

e. If any provision of the Contract, or the application thereof to any person or situation, to any extent shall be held invalid or unenforceable, the remainder of the Contract, and the application of such provision to persons or situations other than those to which it shall have been held invalid or unenforceable, shall not be affected thereby, but shall continue to be valid and enforceable to the fullest extent permitted by law. All provisions of the Contract, which by their terms require performance by either party hereto after termination of the Contract, shall survive any termination. 

f. All required notices under the Contract shall be sent via certified or registered mail or by a nationally recognized commercial courier to the receiving party’s address and directed to the attention of such party’s contact person as listed in the Bid.

g. The Contract shall be construed and governed by the laws of the state of where the Project is located. All disputes, controversies, claims, or causes of actions concerning the Contract shall be commenced, tried, and litigated exclusively in the State and Federal Courts located in San Francisco County, California.

h. No waiver of the Contract or any of its provisions is valid unless expressly agreed to in a writing signed by Contractor.  No waiver by Contractor of any default under the Contract is a waiver of any other or subsequent default. The failure of Contractor to insist upon strict and timely performance of any term or condition of the Contract shall not be deemed a waiver of any right or remedy that Contractor may have under the Contract or at law or equity, and shall not be deemed a waiver of any subsequent default in performance of the terms and conditions of the Contract.

i No modification of the Contract or any of its provisions by Owner is valid unless expressly agreed to in a writing signed by Contractor and Owner.

j. The Contract constitutes the entire agreement between the parties; and all prior discussions, negotiations, and oral and written agreements are merged herein.

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