Provision of Services

TERMS AND CONDITIONS FOR THE PROVISION OF SERVICES

 

  1. COMPONENTS OF THE AGREEMENT

All construction, repair, or other services (the “Work”) to be performed by Onex shall be supplied pursuant to these Terms and Conditions for the Provision of Services. The provision of any materials or goods by Onex in connection with the Work shall be governed by Onex’s then-current Terms and Conditions for the Sale of Goods, which are incorporated herein by reference. Owner acknowledges that Onex’s Terms and Conditions for the Sale of Goods have been provided and reviewed or that Owner has been provided the opportunity to review such Terms and Conditions and agrees to be bound thereby. These Terms and Conditions for the Provision of Services, the Terms and Conditions for the Sale of Goods, and the Quotation furnished by Onex for the work to be performed shall together comprise the Agreement to perform the Work.

 

  1. ENFORCEABILITY
    This Agreement shall become legally enforceable upon the earlier of (a) delivery of a signed acknowledgement or purchase order; (b) commencement of performance by Onex; or (c) delivery of any materials or other goods by Onex to the job site. Any acceptance of this Agreement is limited to the express terms of the offer contained in this Agreement, and the terms of the Terms and Conditions for the Provision of Services, the Terms and Conditions for the Sale of Goods, and the Quotation shall govern all work performed hereunder without respect to any additional terms or conditions accompanying any acknowledgment or purchase order of Owner.

 

  1. SPECIFICATIONS

Owner shall be solely responsible for any and all discrepancies, omissions, or ambiguities in any specifications, drawings, and other instructions for any Work to be performed hereunder (the “Specifications”) provided by Owner or any agent or contractor of Owner or the failure of any such Specifications to be suitable for Owner’s purposes. In the event that Onex should discover any discrepancy, omission, or ambiguity in any Specifications provided by Owner or any agent or contractor thereof, Onex may, in its sole discretion, delay any or all of the Work until such time as Owner has provided such clarification as to the discrepancies, omissions, or ambiguities as Onex may reasonably require. In the case of any such delay, the deadline for Onex to complete the Work or any portion thereof shall be extended by the length of the delay.

 

  1. ENGINEERING OR DESIGN SERVICES

In the event that Onex is required to furnish engineering or design services for the Work, Onex shall provide Owner with the Specifications generated as part of the furnishing of such engineering or design services. Owner shall then be responsible for reviewing the Specifications furnished by Onex, identifying any discrepancies, omissions, or ambiguities in those Specifications, and ensuring that the construction contemplated by those documents is suitable for Owner’s purposes within a reasonable period of time, but in no event at least five business days prior to Onex beginning the portion of the Work in question.

 

Owner shall be responsible for any and all discrepancies, omissions, or ambiguities in Specifications or failure of Specifications to be suitable for Owner’s purposes after Owner either (a) approves the Specifications or (b) fails to provide objections to those Specifications within a reasonable period of time.

 

  1. NOTIFICATION OF COMPLETION

When Onex completes the Work or any discrete part thereof, Onex may give Owner notice thereof. Within fourteen (14) days after receipt of such notice, Owner shall inspect the Work and determine if it has been completed in accordance with the applicable Quotation, Specifications, and this Agreement; if so, Owner shall promptly advise Onex in writing of its final acceptance thereof. In the event of any defect in the Work, Owner shall immediately notify Onex of the defects.

Onex shall not be responsible for any defect in Work not identified by Owner within fourteen (14) days of Onex providing notice of completion as set forth above.

 

  1. SUBCONTRACTORS

Onex may engage such subcontractors as it reasonably believes are necessary to complete the Work. Owner shall ensure that such subcontractors are provided such access as they require to the project site to perform the Work and shall not impede them in the completion of the Work.

 

  1. SCHEDULE OF WORK

The Work for any Project shall be completed within the timeframes as provided in the Quotation. In the event that Onex is delayed in completing the Work or any part thereof for reasons beyond the control of Onex, the deadlines shall be extended by the amount of time of such delay. Onex shall use commercially reasonable means to ensure completion of the Work in accordance with the applicable Quotation.

 

  1. PAYMENT
  2. Time of Payment. Onex shall, from time to time, submit invoices to Owner for Work performed by Onex showing the Work for which payment is sought and the amount of payment requested. Owner shall, within thirty (30) days of the date of such invoice, make payment to Onex of the amount set forth in the invoice.

 

  1. Withholding Payment Due to Default. Owner may not withhold payment from Onex due to any alleged deficiencies in the Work performed with respect to any portion of the Work as to which (a) Owner has approved; (b) Owner has failed to object to within fourteen (14) days as set forth in paragraph 2.03 above; (c) Owner has objected, but which Onex has completed in accordance with this Agreement, the applicable Quotation, and any Specifications; or (d) Owner has objected and Onex has remedied the Work so that it conforms to this Agreement, the applicable Quotation, and any Specifications.

 

In the event any payments otherwise due are lawfully withheld in accordance with the terms of this Agreement, Owner shall notify Onex of the event of default causing said withholding. Owner shall promptly pay Onex for all portions of the Work which have been completed in accordance with this Agreement, the applicable Quotation, and any Specifications notwithstanding Owner’s objections to any other portion of the Work.

 

  1. Finance Charge. A finance charge equal to 1.5% of the unpaid balance per month (18.00% per annum) will be added to all delinquent accounts. All remittances must be made in U.S. dollars.

 

 

  1. WARRANTIES

Onex warrants for a period of one year from the date of final acceptance of the Work by Owner (or in the case of replacements, correction, or cure of defects made pursuant to this Agreement, after final acceptance thereof by Owner) (the “Warranty Period”), that all material furnished and all Work performed under this contract will substantially conform to this Agreement, the applicable Quotation, and any Specifications.

 

      ONEX EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WORKMANLIKE CONSTRUCTION.

 

In no event shall Onex be responsible for ensuring that the completed Work complies with or conforms to any federal, state, local, or other applicable laws or regulations.

 

  1. CHANGES

If unforeseen circumstances, including without limitation defects in the Specifications, conditions of the site where the Work is to be performed, requests of the Owner, or other conditions beyond the control of Onex, require a change in the Work to be performed, Onex may perform any additional Work that is reasonably necessary to complete the project contemplated by this Agreement, the applicable Quotation, and any Specifications or is requested by Owner without a Change Order on a time and materials basis and notwithstanding any maximum or “not to exceed” price specified in the applicable Quotation. In such an event, Owner shall be obligated to pay any additional costs incurred as a result of such additional Work on a time and materials basis irrespective of any maximum or “not to exceed” price specified in the applicable Quotation.

 

In the event of a change as set forth in this section 10, all other terms and conditions of this Agreement and the Specifications shall remain in full force and effect.

 

  1. FORCE MAJEURE

Neither party shall be liable for nonperformance or delay in performance due to acts of God, acts or demands of any government or agency thereof, strikes, fires, floods, accidents, or other unforeseeable causes beyond its control and not due to its fault or negligence, provided that the party not performing or delaying its performance notifies the other of any such occurrence within a reasonable amount of time of the occurrence.

 

  1. COVENANTS OF OWNER
  2. Publicity of Relationship. Without prior written consent of Onex, Owner shall not in any manner advertise or publish the fact that it has contracted to perform the Work for Onex.

 

  1. Assignment and Delegation. Owner shall not assign this order nor delegate any duties hereunder without Onex’s prior written consent, and any such attempted assignment shall be void.

 

  1. Compliance with Laws. Owner shall comply with all Federal, State, and local laws, rules, and regulations that may be applicable to this Agreement and, at the request of Onex, Owner will furnish certificates to the effect that it has complied with said laws and regulations.

 

  1. Casual Overtime. Unless specified to the contrary in the applicable Quotation, Onex shall perform the Work on a straight-time basis, employing a sufficient work force to work a normal 40-hour workweek of five 8-hour days including Casual Overtime (hereinafter defined) as may be required. “Casual Overtime” is defined as overtime of the type required to complete the ordinary work of the day. Onex may in its sole discretion, if it deems such work necessary under the particular facts and circumstances surrounding a specific Project, cause some or all of its employees and/or contractors to work overtime beyond Causal Overtime.

 

  1. Protection of Work, Materials, and Equipment. Onex may, during the course of the Work, be required to leave materials, equipment, or other items at the project site. Owner shall be responsible for ensuring that such materials, equipment, and other items are adequately protected from theft, damage or deterioration. All requests by Onex to enclose or otherwise protect such property shall be complied with promptly at no cost to Onex.

 

  1. SET-OFF

Owner shall not be entitled to set-off at any time of any sums owed by Onex to Owner against sums payable by Owner under this Agreement.

 

  1. INDEMNIFICATION AND LIMITATION OF LIABILITY

      Owner agrees to defend, indemnify and hold harmless Onex, and its agents and employees, from and against any claim, cost, expense, or liability (including attorney’s fees), attributable to bodily injury, sickness, disease, or death, or damage to or destruction of property (including the loss of use thereof), caused by, arising out of, resulting from or occurring in connection with the performance of the Work by Onex, its contractors, or their agents or employees, whether or not caused in part by the active or passive negligence, gross negligence, or other fault of a party indemnified hereunder. Owner’s obligation hereunder shall not be limited by the provisions of any workmen’s compensation or similar act.

     

      Onex and its consultants, partners, agents and employees, shall not be liable to the Owner, whether jointly, severally or individually, in excess of the compensation paid to Onex under this Agreement, as a result of any negligence, gross negligence, or other act or omission not amounting to a willful or intentional wrong. Owner hereby agrees that to the fullest extent permitted by law, Onex shall not be liable to Owner for any special, indirect or consequential damages whatsoever, whether caused by Onex’s negligence, gross negligence, errors, omissions, strict liability, breach of contract, breach of warranty or other cause or causes whatsoever, including but not limited to, loss of use of equipment or facility, and loss of profits or revenue.

 

  1. INDEPENDENT CONTRACTOR STATUS

      Onex is an independent contractor of Owner. Neither Onex nor any of the persons furnishing materials or performing work or services which are required by this Agreement are employees of Owner within the meaning of any federal, state, or local industrial, labor, or other law

 

  1. MERGER

      These Terms and Conditions for the Provision of Services, the Terms and Conditions for the Sale of Goods, and the Quotation together constitute the entire Agreement between the parties and there are no understandings or representations not contained therein.

 

  1. AMENDMENT AND WAIVER

      Unless otherwise permitted hereunder, neither the Agreement nor the Specifications  may be amended, modified, waived, discharged, terminated or rescinded orally or by the course of performance, course of dealing or usage of trade except by (a) a writing executed by the party against which enforcement of the amendment, modification, waiver, discharge, termination or rescission is sought; or (b) by written notice to the party against which enforcement of the amendment, modification, waiver, discharge, termination, rescission is sought which notice is not objected to by that party within ten days of receipt of such notice.

 

  1. SUCCESSORS
    This writing shall be binding upon and inure to the benefit of the successors, permitted assigns, heirs and personal representatives of the parties hereto.

 

  1. HEADINGS

      The headings herein are for convenience of reference only and do not define or limit the provisions hereof.

 

  1. VENUE AND CHOICE OF LAW

      This Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania. Venue for any dispute arising under or relating to the Agreement or the Work performed hereunder shall be proper exclusively in the courts located in Erie County, Pennsylvania.

 

  1. SEVERABILITY

      The provisions of this writing shall be severable so that the invalidity, unenforceability, or waiver of any such terms shall not affect the remaining provisions herein