TERMS AND CONDITION OF SERVICES
In these Terms and Conditions of Services, the following definitions shall apply:
A) “Contract” means the binding contract between M+B and Customer for the provision of Services, consisting of these Terms and the Order;
B) “Customer” means the person or entity receiving the Services pursuant to the Contract;
C) “Order” means the written purchase or other order placed by Customer for the provision of Services;
D) “Quotation” means a written quotation of prices, rates and other commercial terms relating to the provision of Services provided to Customer by MUND+BRUNS;
E) “M+B” means MUND+BRUNS, LLC, with principal U.S. offices at 16815 Royal Crest Drive, Suite 150, Houston, Texas, 77058;
F) “Services” means the services to be performed by M+B pursuant to the Contract, as described in the Order; and
G) “Terms” means these Terms and Conditions of Services.
A) To the greatest extent allowed under applicable law, these Terms will exclusively apply to and govern the provision of Services by M+B for Customer; no terms and conditions or similar documents issued by Customer and purporting to apply to such transaction(s) (including but not limited to any terms and conditions issued by Customer in connection with the Order or purporting to be incorporated therein) shall in any way modify or supersede these Terms, and any such terms and conditions are hereby rejected in their entirety and shall be null and void. M+B’s acceptance of any such Order is expressly conditioned on Customer’s acceptance of these Terms as the exclusive terms and conditions governing such transaction(s). Upon acceptance of such Order by M+B, a Contract shall be deemed to have been entered into by and between the parties, incorporating these Terms. In addition, the Order may incorporate terms from the Quotation, if any, and any Quotation issued by M+B for the provision of Services shall be governed exclusively by these Terms. No Order will be binding upon M+B unless accepted in writing.
B ) The Contract shall constitute the entire agreement between Customer and M+B with respect to the provision of Services described in the Order. The parties shall not be bound by any statement, representation, promise, inducement, or understanding of any kind not set forth in the Contract. Any change, amendment or modification of any of the terms and conditions of the Contract or waiver of any of the terms and conditions thereof must be made in writing and executed by the parties.
ORDER OF PRECEDENCE:
In the event of a conflict or ambiguity between the provisions of these Terms and the Order, the provisions of these Terms shall supersede the Order.
PROVISION OF SERVICES:
A) If the Order contemplates the provision of Services by M+B for Customer, the terms of the provision of such Services shall be as set forth in this Section 4, except that the purchase price, payment terms and a description of the Services to be provided shall be as set forth in the Order. If payment terms are not set forth in the Order, payment terms shall be as follows: net thirty (30) days from receipt of invoice.
B) Unless otherwise stated in the Order, any applicable sales, use or similar taxes levied in connection with the performance of Services are not included in the purchase price and shall be the sole obligation of Customer.
C) If the provision of the Services requires the agents or employees of M+B being present on Customer’s premises or the premises of a third party, M+B (a) hereby agrees to indemnify, defend and hold Customer and its employees, agents, officers, directors, managers, members, and partners harmless from and against any claims, losses, liabilities, demands, judgments, proceedings, settlements and expenses (including costs and reasonable attorney’s fees) received or incurred by such indemnified person, but only to the extent caused by the negligence or willful misconduct of M+B or its employees or agents; and (b) agrees to maintain in effect those policies of insurance described in Exhibit “A” attached hereto and incorporated herein.
D) M+B warrants that the Services will be provided promptly, in a good and workmanlike manner, and in accordance with the Order and any prevailing industry standards. This warranty is non-assignable. In the event of any breach of the foregoing warranties, M+B’s sole obligation, and Customer’s sole remedy therefor, will be for M+B to (at M+B’s election) promptly re-perform the Services, at M+B’s cost and expense, or for M+B to promptly refund the purchase price paid therefor; provided that under no circumstances will M+B be responsible for costs arising in connection with de-installation or removal of equipment, or downtime, or any other ancillary costs, in the course of re-performing any such Services or in the exercise of M+B’s investigative rights noted below. M+B shall be afforded an opportunity to investigate any warranty claims at its sole costs and expense. SUBJECT TO THE FOREGOING SENTENCE, THE SERVICES ARE PROVIDED WITHOUT WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, IT BEING AGREED THAT ALL OTHER RISKS ARE TO BE BORNE BY CUSTOMER.
Prior to provision of any Services, upon M+B’s request, Customer will promptly provide M+B, and hereby authorizes M+B to obtain from Customer or any third party, such credit information and documentation as M+B may reasonably require a determination of the Customer’s creditworthiness. If at any time, in the sole opinion of M+B, the financial responsibility of Customer is impaired or unsatisfactory, or Customer fails to provide such credit information, M+B may suspend performance, or place Customer on a cash-in-advance status until arrangements are made for security satisfactory to M+B or, at M+B’s option, until all outstanding amounts are paid.
TERMINATION PRIOR TO COMPLETION:
Unless a separate agreement relating to cancellation has been entered into by the parties, Customer may terminate the Contract only with the prior written consent of M+B, which consent may be subject to applicable cancellation fees.
In the event that M+B is unable to perform any obligation hereunder due to a Force Majeure Event, M+B shall be excused from such performance for the duration of such Force Majeure Event. “Force Majeure Event” means the occurrence of conditions beyond the reasonable control of M+B, including but not limited to, acts of God, civil or military authorities, or a public enemy, fire, floods, wind, storm, labor disorders, strikes, work stoppages or other labor trouble, accidents, riots, civil commotion, terrorist acts or threats, closing of the public highways, and other contingencies, similar to the foregoing, beyond the reasonable control of M+B.
No right or remedy conferred upon or reserved to M+B by the Contract shall be exclusive of any other right or remedy herein or by law provided; all rights and remedies of M+B conferred upon M+B by the Contract or by law shall be cumulative and in addition to every other right and remedy available to M+B. The failure of M+B to enforce any provisions of the Contract shall in no way be construed as a waiver of such provisions nor in any way affect the right of M+B thereafter to enforce any such provisions. No waiver by M+B of any default of Customer under the Contract shall constitute a waiver of any subsequent default, whether or not the subsequent default is of a similar or different nature. In the event that M+B should bring an action for enforcement of the Contract, Customer agrees that M+B shall be entitled to award of its reasonable attorney’s and professional fees and court costs associated with such enforcement proceedings. The Contract shall not be assigned or transferred by Customer to any third party without prior written approval by M+B. Any such approval shall not relieve Customer of any of its obligations under the Contract. If any provision of the Contract is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of the Contract shall continue in full force and effect.
Geschäfts- und Betriebsgeheimnisse
Die Mund+Bruns GmbH ist verpflichtet, Geschäfts- und Betriebsgeheimnisse, die anlässlich des Auftrages ihr anvertraut oder zugänglich gemacht worden sind, auch über die Dauer des Auftragsverhältnisses hinaus nicht unbefugt zu offenbaren, weiterzugeben oder zu nutzen.
The Contract shall be governed by and construed in accordance with the laws of the State of Texas, excluding its conflicts of laws provisions. In the event of any dispute arising out of or relating to the Contract, the parties agree that the federal and state civil courts located in Harris County, Texas, shall have exclusive jurisdiction and venue to determine such dispute(s), and each party hereby waives any objection to such jurisdiction and venue in any such court and any claim that such forum is an inconvenient forum.
NO CONSEQUENTIAL DAMAGES:
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, IN NO EVENT SHALL M+B BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, COST OF CAPITAL, LOSS OF ANTICIPATED PROFITS OR REVENUES, BUSINESS INTERRUPTION DAMAGES, OR LOSS OF USE, IN CONNECTION WITH THE CONTRACT OR THE PERFORMANCE OR NON-PERFORMANCE OF THE OBLIGATIONS OF M+B DESCRIBED IN THE CONTRACT, EVEN IF NOTICE WAS GIVEN OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE.
LIMITATIONS OF LIABILITY:
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF M+B FOR ANY CLAIM ARISING IN CONNECTION WITH THE CONTRACT EXCEED THE AGGREGATE AMOUNT ACTUALLY RECEIVED BY M+B FROM CUSTOMER PURSUANT TO THE ORDER WITH RESPECT TO WHICH SUCH LIABILITY AROSE.
Any written notices issued by one party to another party pursuant to the Contract shall be sent by (a) special courier, or (b) certified or registered mail (return receipt requested), to the other party. In the case of M+B, such notice shall be delivered to its address set forth in Section 1. In the case of Customer, such notice shall be delivered to its address set forth in the Order. Notices shall be deemed to have been given when delivered to such party. Notwithstanding any provision to the contrary herein, any party may change its address for notice by written notice to the other party.
In the event that any amounts payable hereunder are not paid in full when due, interest shall accrue on such unpaid amounts at the lesser of (a) 18% percent per annum, and (b) the maximum interest rate allowed by law, until such amounts are paid in full.
EXHIBIT “A” – INSURANCE
|LIMITS OF INSURANCE|
|EACH OCCURRENCE, CLAIM OR LOSS LIMIT OF LIABILITY||$ 1,000,000|
|POLICY AGGREGATE LIMIT OF LIABILITY – Applies to Coverage Parts A, B, C, D, E and F combined||$ 2,000,000|
|PRODUCTS/COMPLETED OPERATIONS AGGREGATE LIMIT||$ 2,000,000|
|DAMAGE TO PREMISES RENTED TO YOU LIMIT||$ 50,000|
|PERSONAL & ADVERTISING INJURY LIMIT||$ 1,000,000|
|The EACH OCCURRENCE, CLAIM OR LOSS LIMIT OF LIABILITY shown in the LIMITS OF INSURANCE schedule above applies separately to each coverage part checked below and made a part of this Policy. However, the total of all “losses” covered by Coverage Parts A, B, C, D, E and F of this Policy cannot exceed the AGGREGATE LIMIT OF LIABILITY stated in the LIMITS OF INSURANCE schedule above. The limits provided by Coverage Parts PBR and PAR are separate limits and not a part of the Aggregate Limit of Liability.|