The Agreement Documents form the Agreement for work performed by APT hereunder. The Agreement Documents represent the entire and integrated Agreement between the parties hereto and supersede prior negotiations, representations or contracts, either oral or written. The Agreement Documents may be amended or modified only by a Modification. The Agreement Documents shall not be construed to create a contractual relationship of any kind (1) between APT and the Manufacturer or Supplier/Distributor; (2) between the Customer and a Sub-Contractor or Sub-Sub-Contractor; (3) between the Customer and the Manufacturer or Supplier/Distributor; or (4) between any person or entity other than APT and Customer.
Owner of Property
APT shall remain the owner of all lamps, fixtures and parts installed under this Agreement on or in the contracted premises of Customer until such time as any and all outstanding amounts are paid. Upon payment, the lamps, fixtures and parts installed under this Agreement shall become the property of Customer.
Access to Customer Premises
Customer hereby provides APT with authorization to enter all locations necessary to provide the contracted scope of work at the contracted location(s). Customer also agrees to grant APT’s authorized personnel access to all lighting fixtures by ensuring that secured areas (including access doors and gates) are opened, boxes and other obstructions and personnel are removed from areas immediately adjacent to the fixtures being installed and, in the case of outdoor fixtures, all obstructions are removed, such as trees and movable equipment. An additional charge, equivalent to APT’s prevailing rates per hour, or part thereof, and per person, will be added to Customer’s billing for interruption of APT’s work, where such interruption takes place through no fault of APT or its personnel.
Commencement of Work
APT shall commence work after (a) all necessary materials have been assembled, (b) APT has received payment as required under the Agreement, (C) all necessary permits and or other governmental requirements have been met and approved and (D) the parties have mutually agreed upon a commencement date.
APT will make reasonable efforts in the performance of the installation scope of work rendered hereunder to reduce any disruption of Customer’s business to a minimum. All work performed by APT will be performed in accordance with industry standards and in compliance with applicable municipal, county, state and federal codes and/or regulations.
In addition, the Customer acknowledges that any physical area in which APT performs any work pursuant to this Agreement is in fact a construction zone, and that as such, hazardous conditions may be present, the Customer, if applicable, shall (a) ensure that no persons shall be allowed in the construction zone unless authorized by APT; (b) notify all its personnel as well as others in the vicinity that they shall not enter upon the construction zone; (c) take all steps necessary to ensure that they do not enter into the construction zone; and (d) indemnify APT from any and all claims made or losses suffered by reason of any unauthorized persons coming on to the construction zone. In the event that any unauthorized persons do come on to the construction zone, then APT shall have the right to cease any or all work so as to minimize the risk of any such persons, in which event all deadlines for performance by APT hereunder shall be extended to and compensated for time lost, and the Customer shall reimburse APT for any and all additional costs and expenses incurred by APT by reason of such delay, including but not limited to any additional labor expenses incurred by APT (at the prevailing rates of APT at the time of the Agreement).
Customer agrees to cooperate in good faith with APT to allow the installation of the product in a timely manner, and, if applicable, to have its employees move all of Customer’s personal property, equipment, inventory or other items that are required to be moved to facilitate the installation. Customer shall notify its customers and employees to remove all personal property within the construction zone so as to avoid or minimize possible damage. APT shall have no obligation to move any such personal property, equipment, inventory, or other items. However, if APT does move such personal property, APT shall not be responsible for any loss of or damage to said personal property. The Customer specifically agrees to look only to whatever insurance Customer chooses to have on same, and Customer specifically waives any rights of subrogation its insurer may have as to APT, etc. Customer shall ensure that such items are moved in an expedient manner and Customer agrees to cooperate in every respect to facilitate the timely installation and repairs for services. APT shall not be liable for any delays caused by any party other than APT, its employees or authorized agents. Furthermore, in the event that any act or omission on the part of the Customer, its employees, agents or representatives shall in any way create a situation which APT must assign/employ additional personnel and/or additional tradesman time, then the Customer shall reimburse APT for the costs of all such additional time at the then standard hourly rate.
In the event that any portion of the Customer’s electrical system is in a state of disrepair so as to impair APT in its performance under this Agreement, or is insufficient to operate the electrical apparatus per the scope of work, upon authorization APT shall remedy such repair or install such additional power as needed. Customer shall pay to APT the agreed upon rates for same, including, but not limited to its then standard hourly rates or as approved by a quoted written change order.
Customer may make any additions to the work completed by APT only after such additions have been authorized and mutually agreed upon, by a written addendum to this Agreement or change order. Customer agrees to compensate APT at the standard rate per person per hour for any delays caused by Customer, or any third party, and for any work in addition to that contemplated under this Agreement.
Excavations and Underground Obstructions
If applicable, the guaranteed excavation and haulaway shall consist of all excavation necessary to obtain the contracted for depths and retain working conditions (water problems) necessary for completion of the lighting installation when conditions are controllable by the contractor through methods generally acceptable in the region by the industry, the contractor is not prevented from performing by government intervention, acts of Nature, abnormal liabilities, natural disasters, shortages, impossibility due to regional technology, or Customer interference. Underground obstruction, including water conditions, which requires forming or pumping, is not included within this Agreement. When these conditions exist on the job site the obstructions shall be removed at Customer’s expense at the then current standard rates. Underground obstructions shall include excess water, gas lines, rock, coral, water lines, phone lines, any solid material deposited by fill, or any normal foreign material, including excess water, in the excavation site. Customer is responsible for clearly marking any underground obstructions (other than those serviced by no-cuts or any other agency contracted by the utility provider or by applicable governmental agency to mark such obstructions), including , but not limited to, gas, electrical, water or phone lines, etc., and is solely responsible for damage of unmarked items. APT is not responsible with respect to work and/or services performed by APT or its employees, agents, subcontractors or independent contractors hereunder for any damage to trees, bushes, sprinkler systems (above or below ground), lawns or other items of landscaping planted by Customer or third parties to the premises of Customer and any and all such damages shall be solely borne by the Customer. Notwithstanding the foregoing, APT shall notify those Federal, state, local or county agencies with respect to the work and service of APT to be performed hereunder in order for such agencies to timely mark all underground wiring or cables, etc. as required by law and thereafter APT shall not be liable for any damage caused by such agencies’ failure to comply with obligations under the law.
Ownership or Operation of Premises
Customer warrants that Customer is the owner, property manager, or lessee of the real property wherein the installation service is to be performed and lamps and lighting fixtures provided and has authorization to enter into the Agreement herein.
Termination of Customer’s Business
In the event that Customer ceases operations or sells the business under which Customer operates during the term of this Agreement, Customer shall remain responsible for all of Customer’s financial obligations under this Agreement. Customer has the right to assign this Agreement to a new Customer or managing agent, only with prior written consent of APT, which consent will not be unreasonably withheld.
Default by APT
In the event of a default by APT, the Customer shall notify APT in writing within fourteen (14) days of said non-performance, APT shall have forty?five (45) days to remedy any such non-performance. If such non-performance is not remedied during this forty-five (45) day period, subject to extension for delays beyond APT’s control, then Customer may, within ten (10) days of the expiration of such period, terminate the Agreement in writing and be entitled to a refund of the amounts paid only with respect to those defective/non-performing Product. In the event APT, in its sole discretion, chooses to remedy any non?performing goods, Customer agrees to fully cooperate with APT as required by this Agreement. APT expressly reserves the right to repossess those allegedly defective/non?performing products and Customer agrees that any such repossession shall not be considered a breach of the peace.
Default by Customer/Remedies
- At the option of APT, and without in any way limiting its right to demand payment in full pursuant to this Agreement, APT may declare a default under the terms of this Agreement, upon the occurrence of any of the following events of default: (a) Customer fails to timely make a payment when due; (b) Customer breaks any written promise Customer has made to APT or Customer fails to perform promptly at the time and strictly in the manner provided in this Agreement or in any other written Agreement related to this Agreement; (c) a breach of any term or condition of this Agreement; (d) suspension, liquidation, sale or transfer of Customer’s business or assets; (e) any representation, warranty, statement or report made or furnished to APT by Customer or on Customer’s behalf is false or misleading in any material respect; (f) Customer becomes insolvent, receiver is appointed for any part of Customer’s property, Customer makes an assignment for the benefit of creditors or any proceeding as commenced either by Customer or against Customer under any bankruptcy or insolvency laws; (g) any creditor tries to take any of Customer’s property in which APT has a lien or security interest; (h) issuance of any tax levy or lien against Customer’s property; and (i) the filing of formal charges under any federal or state law against Customer or Customer’s assets which forfeiture is a potential penalty.
- If any sum due under this Agreement or to become due from Customer to APT is referred to collection, Customer agrees to pay all costs and expenses of collection and attorney’s fees incurred by APT at all pre-trial, trial, appellate and post-judgment proceedings.
- In the event of default by Customer, and at APT’s option, APT shall be entitled to any or all of the following remedies without notice: Since APT, by virtue of this Agreement, has a lien on Customer’s real property improved pursuant to this Agreement, then, to the extent permitted by applicable law, APT shall be entitled to enforce its rights under this Agreement. Further, to the extent that Chapter 713 of the Florida Statutes may not apply then for all purposes herein, APT shall be deemed to have a security interest in any and all of the product supplied by APT and, in addition to all other rights and remedies hereunder, APT shall be entitled to all rights and remedies as provided a secured creditor under the Florida Uniform Commercial Code. In addition to all of the remedies herein, and not in limitation thereof, APT shall have all remedies available in law or equity.
Each right and remedy of APT provided for in these Agreement Documents shall be cumulative and shall be in addition to every other right or remedy provided for in these Agreement Documents or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by APT of any one or more of the rights or remedies provided for in these Agreement Documents or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by APT of any or all other rights or remedies provided for in these Agreement Documents or now or hereafter existing at law or in equity by statute or otherwise. The provisions of this section of the General Conditions Rider shall survive the termination of this Agreement.
APT and Customer acknowledge that applicable law may require special means of disposal of fluorescent lighting tubes and hazardous substances. The terms “hazardous waste”, “hazardous substance”, “disposal”, “release”, and “threatened release”, as used in these Agreement Documents, shall have the same meaning as set forth in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. (“CERCLA”), the Superfund Amendments and Reauthorization Act of 1986, Pub.L. No. 99?499 (“SARA”), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 49 U.S.C. Section 6901, et seq. or other applicable state or Federal laws, rules or regulations adopted pursuant to any of the foregoing.
For all purposes, as stated by law, the Customer shall be the “generator” of such materials. Customer warrants that it has agreed with APT to provide for the lawful disposal of all such hazardous substances, and Customer and APT agree that APT’s obligations with regard to same are limited to boxing such hazardous substances and making same available for said disposal company. Although APT is not responsible for securing or issuing a Certificate of Proper Disposal for Customer, it will use all commercially reasonable efforts to secure and deliver such a Certificate once all payments due to APT by Customer have been received by APT.
Customer shall comply in all respects with all environmental protections, federal, state and local laws, statutes, regulations and ordinances; not cause or permit to exist, as a result of an intentional or unintentional action or omission on its part or on the part of any third party, on property owned and/or occupied by Customer, any environmental activity where damage may result to the environment, unless such environmental activity is pursuant to the conditions of a permit issued by the appropriate federal, state or locate governmental authorities.
APT will meet its obligations under these Agreement Documents by complying with the Scope of Work approved by the Customer. APT shall not guarantee nor shall APT be required to insure that light levels generated by the new equipment (including lamps, ballasts and reflectors) installed pursuant to this Agreement meet any projected light levels or as to the existence of lack of existence of any other factor which will affect the light level within the environment unless the scope of work included the design performed by APT with stated Light level requirements.
Customer shall pay for any extraordinary expenses associated with the Agreement, including, but not limited to all permitting, engineering fees, drawings, wind load calculation fees, and related costs in the attaining of them as appropriate or as required by any governmental authority, and extra dumpsters or other non?labor charges associated with the disposal of non?hazardous waste or excess materials.
APT shall carry general liability insurance coverage of a minimum of $2,000,000 per occurrence. In addition to our general liability coverage, as an added value to our customers, APT will indemnify and hold harmless Customer, up to a limit of $1,000,000, from and against all loss or damage suffered by Customer as the result of claims made for physical injuries or property damage, including cost, expenses and attorneys’ fees, directly arising or resulting from the failure of APT to timely render services under this Agreement that in turn caused, or allowed to remain, an unsafe condition on Customer’s location. This indemnity shall only be applicable if Customer has responded timely to APT’s notification of needed repairs and APT fails to provide the repairs or maintenance services within the performance guarantees noted herein. This indemnity expires upon the termination of this Agreement, whether as the result of the normal expiration of the Agreement term or due to early termination for any reason whatsoever. This security indemnity is inapplicable in the event additional lighting is necessary in order to meet all applicable building codes for the location, or in APT’s discretion, additional lighting is required to assist increasing the safety level of lighting, and Customer fails to have APT install such additional lighting as required.
Limitation of Warranty
APT MAKES NO EXPRESS WARRANTIES OR CONDITIONS BEYOND THOSE STATED IN THIS AGREEMENT. APT DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
APT’S RESPONSIBILITY FOR MALFUNCTIONS AND DEFECTS IN PARTS AND MATERIALS IS LIMITED TO REPAIR AND REPLACEMENT DURING THE TERM OF THIS AGREEMENT, WHETHER AS THE RESULT OF THE NATURAL EXPIRATION OF THIS AGREEMENT OR EARLY TERMINATION OR FOR ANY REASON.
APT DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH IN THIS WARRANTY STATEMENT OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
This Agreement does not cover, nor shall APT be liable for service, maintenance, repair or replacement necessitated or occasioned by loss, failure or damage resulting from any cause beyond APT’s control, including, but not limited to fire of any origin, faulty or leaky ballasts voltage variances, explosions, governmental restrictions, labor disorder, lightning, accident, water, windstorm, hurricane, hail, theft, vandalism, negligence, prohibition to obtain materials or services, misuse, other acts of nature, or failure or damage due to unauthorized repairs by others. In no event shall APT be liable for any consequential damages whatsoever resulting from any failure or delay in delivery of services or work or materials hereunder, whether from causes beyond APT’s control or not.
- Agreement Terms Confidential. The parties agree that they will not voluntarily publish, publicly disclose or disclose in a manner which will reasonably lead to publication of, terms or provisions of this Agreement, including specifically those relating to compensation.
- Notices. All notices required or permitted to be given under the terms of this Agreement shall be in writing. Notices may be personally delivered to a party or sent by facsimile to a party or may be mailed to a party. Notices are deemed given when received by the party being notified. However, if a notice is mailed to a party by certified mail, return receipt requested, proper postage prepaid, in an envelope addressed to the address of the party (or such other address as my be designated by a party by giving notice thereof to the other party) then such notice shall be deemed given on the date that it is turned over to the custody of the United States Postal Service.
- Further Assurances. All parties hereto shall execute and deliver such other instruments and do such other acts as may be necessary to carry out the intent and purposes of this Agreement.
- Counterparts. This Agreement may be executed in any number of counterparts. All executed counterparts shall constitute one Agreement, notwithstanding that all signatories are not signatories to the original or the same counterpart.
- Severability. The invalidity in whole or in part of any covenant, promise or undertaking, or any section, subsection, paragraph, sentence, clause, phrase or work, or of any provision of this Agreement shall not affect the validity of the remaining portions thereof.
- Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The parties hereto agree that all actions and proceedings relating directly or indirectly hereto shall be litigated in any state court or federal court located in Broward County, Florida, and the parties hereby expressly consent to the jurisdiction of any such courts and to venue therein and consent to service of process in any such action or proceeding by certified or registered mailing of the summons and complaint therein directed to the parties at their respective addresses set forth in this Agreement.
- This Agreement shall be binding upon the successors, assigns and legal representatives of both parties. In the event of the sale or conveyance of the CUSTOMER’s premises, CUSTOMER’s buyer shall assume all rights and obligations under this Agreement. A copy of this Agreement shall be provided to any such buyer prior to closing of title.
- This Agreement is not valid until signed by both parties. No amendment or change to this Agreement shall be valid unless mutually agreed upon by both parties in writing.
- Construction. Each party has reviewed this Agreement and has had an opportunity to consult with counsel. As a result, the rule of construction that ambiguities are to be resolved against the party drafting this Agreement shall not apply.
- Binding Effect. This Agreement shall be binding upon the heirs, personal representatives, guardians, legal representatives, administrators, assigns and successors of the parties hereto.
- Attorney’s Fees. In the event of any litigation arising out of this Agreement, the prevailing party shall be entitled to court costs and reasonable attorneys’ fees at the pre-trial, trial, appellate and post judgments levels.
- Waivers. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions of this Agreement, whether or not similar, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
- Reference to Customer Name. Customer agrees that APT may cite Customer’s name as one of APT’s customers, and use Customer’s name as a reference.
(Rev. 1 – 12/22/2017)