Acceptance by Customer (as named on the signature page) of any proposal, quotation or invoice (a “Proposal”) issued by Andrew J. Foss, Inc. (“AJF”), to which these terms and conditions are attached or by reference made a part of, shall constitute an agreement between Customer and AJF with respect to the responsibilities of AJF and Customer pursuant to the Proposal (the “Agreement”). The Agreement shall consist of the Proposal and these terms and conditions, together with any modifications made in accordance with the terms hereof. No terms or conditions, other than those stated herein, and no agreement or understanding in any way modifying the terms and conditions stated herein, shall be binding upon AJF unless made in writing and signed by AJF’s duly authorized officer. Written or verbal acceptance of any Proposal and/or the acceptance of deliverables or services by Customer shall constitute Customer’s assent to these exclusive terms and conditions with respect to such Proposal. This order and contract shall be governed exclusively by, and be construed in accordance with, the laws of the State of New Hampshire (except the conflicts of laws provisions thereof).
Scope of Service
AJF shall provide only those professional services and/or products specified in the Proposal (the “Work”). Customer understands and agrees that, unless listed in the Proposal, AJF is not responsible for any other work or scope of supply or any disclosure, notifications or reports that may be required to be made to third parties, including appropriate governmental authorities. If Customer requests and AJF agrees to perform any services that are in addition to or outside the scope of Work identified in the Proposal, Customer shall promptly pay AJF for such services in accordance with the terms and rates shown in the Proposal or, if no such terms or rates are shown in the Proposal, in accordance with AJF’s standard terms and rates for the services performed.
Customer shall pay AJF for the Work based upon the price or the rates shown in the Proposal.
In the event Customer fails to make payment in full within the time period set forth in the Proposal, such failure to pay on time constitutes a material breach of contract by Customer permitting AJF to suspend its performance hereunder, and AJF shall have all other remedies permitted to AJF by law, equity and these terms. Past due invoices will be penalized a compounding 2% of the invoice every 7 days the invoice goes unpaid, or the highest rate allowed by applicable law, whichever is lower and, if Customer has provided AJF with a credit card authorization, AJF shall be entitled to charge the invoice amount and interest against such card. If AJF must take legal action to collect any amount due hereunder, Customer shall pay all court costs plus attorney’s fees incurred by AJF in bringing such legal action.
Standard of Care
The Work shall be carried out by AJF in a manner consistent with that level of care and skill ordinarily exercised by others currently providing similar services under similar circumstances at the time the services are performed. NO OTHER WARRANTY, EXPRESS OR IMPLIED, WHETHER CONTAINED IN MATERIALS PROVIDED OR STATEMENTS MADE BY AJF OR OTHERWISE, IS MADE BY AJF WITH RESPECT TO THE QUALITY, RESULT, EFFECTIVENESS OR OUTCOME OF THE WORK, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY AS TO NON-INFRINGEMENT, AND ANY SUCH ADDITIONAL WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. Customer’s sole remedy for a breach of the foregoing warranty is to require AJF to correct or replace, at AJF’s election, the affected service if the breach of warranty is made known to AJF in writing within 3 (three) months from the date the affected services were provided. AJF DOES NOT PROVIDE ANY WARRANTY OR GUARANTY WITH RESPECT TO THIRD PARTY SOFTWARE OR HARDWARE (SUCH AS THE SOFTWARE PLATFORM OF ANY WEBSITE) AND, ACCORDINGLY, (a) AJF HAS NO RESPONSIBILITY TO CORRECT, OR PAY FOR THE CORRECTION OF, ERRORS OR PROBLEMS ARISING FROM OR CAUSED BY THIRD PARTY SOFTWARE OR HARDWARE, AND (b) AJF DOES NOT WARRANT THAT THE SERVICES OR OPERATION OF ANY WEB SITE WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. Customer assumes all risks related to processing of transactions related to electronic commerce.
Limitations of Liability
In no event shall AJF or any of its owners, officers or employees be liable to Customer, or anyone claiming by, through or under Customer, for any special, incidental, indirect or consequential damages whatsoever arising out of or resulting in any way, directly or indirectly, from the Work or the acts or omissions of AJF’s employees or agents, whether or not any such losses or damages are caused by negligence, professional errors or omissions, strict liability, breach of contract, breach of express or implied warranty or otherwise. In no event shall AJF be liable to Customer for negligence, professional errors or omissions, strict liability, breach of contract, breach of express or implied warranty or otherwise unless Customer provides AJF with written notice of the claim within 3 (three) months of the date the service or deliverable was provided to Customer. AJF’s liability for any claim relating to the Work shall be limited to the amount paid to AJF by Customer pursuant to the Proposal.
Access to Site and Information
Customer will provide for right of entry and access to all relevant sites, equipment and other information in its control or possession as is necessary for AJF to timely and fully complete the Work. AJF is not responsible for the quality or accuracy of data or information, nor for the methods from which the data was developed, where such information or data is provided by or through Customer or others that are not agents or AJF, and AJF has no obligation to investigate facts or conditions not disclosed to it by Customer.
AJF is not liable for any failure to perform, or delay in performance, due to circumstances beyond its reasonable control, including but not limited to, riots, wars, fires, floods, explosions, strikes, acts of nature, and acts of government. If AJF’s services are interrupted due to any such force majeure cause, Customer and AJF shall negotiate a reasonable extension of time for AJF’s performance and payment of any additional costs to be incurred by AJF as a result thereof.
Title and Risk of Loss
Title to goods shall pass upon payment in full therefor, and risk of loss shall pass to Customer upon delivery to Customer.