These Vendor Master Terms and Conditions apply to any and all agreements by and between NM&C, Inc. (“NM&C Inc.”) and Vendor.
SCOPE AND DEFINITIONS
A. SCOPE OF MASTER TERMS & CONDITIONS
These Vendor Master Terms and Conditions (“Master Terms & Conditions”) apply to any and all proposals, agreements, Contracts, Orders, Goods, Services and Specifications by and between NM&C, Inc. and Vendor, unless expressly amended or modified in a written agreement signed by both parties. Except for terms defined in the body hereof, capitalized terms used herein are defined below in “B. DEFINITIONS” of this Section.
1. “NM&C Inc.” refers to the company NM&C, Inc., also doing business as National Maintenance and Construction, Inc., and any subsidiary, affiliate, assign, or successor in interest.
2. “Vendor” refers to the person, firm, company or other legal entity, including the entity’s owner, officer, managing member, partner or agent, to whom NM&C Inc. has issued an Order.
3. “Client” refers to a person or entity who is, or has been at any time, a customer or client, or a potential customer or client, of NM&C Inc. and for whom Goods or Services are sought or might be provided.
4. “Contract” refers to and includes these Master Terms & Conditions, the applicable Specifications, the applicable Order, any written amendment or modification thereto, and any other codes, requirements, or documents (or parts of documents) referenced in the Order or Specifications, and any amendments and modifications thereto, as the foregoing together make up the full and entire agreement between NM&C Inc. and Vendor.
5. “Goods” refers to and includes all products and goods specified in an Order, Change Order, and any permitted amendment or modification, and any items that are or will be provided in connection with providing such products and goods.
6. “Master Terms & Conditions” refers to this Vendor Master Terms and Conditions, and any and all amendments and revisions thereto, which may be done from time to time at NM&C Inc.’s discretion.
7. “Order” refers to the “Vendor Work Order,” also referred to as the “VWO,” issued by NM&C Inc. to Vendor, as part of the offer for Goods and/or Services to Vendor, and includes these Master Terms & Conditions and other Specifications and documents referenced in the Order and any amendment or modification thereto.
8. “Services” refers to any and all work and services of any kind that are or will be provided in connection with an Order (as the term “Order” is defined herein).
9. “Specifications” refers to any and all details, data, drawings, illustrations, photographs, images, blueprints, performance requirements, technical and structural requirements, and any other written, recorded or digital details and specifications provided by NM&C Inc. to Vendor regarding any Goods, Services, Order or Contract.
VENDOR’S ACCEPTANCE AND DELIVERY
A. NM&C INC. ORDER
1. Order as Offer of NM&C Inc.: An Order from NM&C Inc. to Vendor shall be deemed an offer for Goods and/or Services and to enter a Contract with NM&C Inc.
2. Conditions of Order: Each and every Order includes, and is expressly conditioned upon Vendor’s acceptance of, the Master Terms & Conditions and any Specifications.
3. Changes to Order: NM&C Inc. may at any time make changes in the delivery schedules and any item or thing in any Specifications (“Change Order”), but no change will be permitted or effective unless authorized in a writing signed by NM&C Inc. If any such change affects the costs or delivery schedule for Vendor, NM&C Inc. may make an equitable adjustment in the applicable Order or Change Order, provided Vendor submits a request with a basis for adjustment before performing any part of the Change Order or continuing to perform any part of the Contract.
B. VENDOR ACCEPTANCE OF ORDER
1. Acceptance: Vendor’s written notice of acceptance or Vendor’s attempt to perform any part of the Order, whichever occurs first, shall be deemed acceptance of the Order and Contract.
2. Additional or Different Terms: Any additional or different terms or conditions of any kind and in any form from or by Vendor are hereby expressly rejected and shall not be effective, binding or enforceable upon NM&C Inc. in any way unless specifically and expressly agreed upon in writing by an officer of NM&C Inc.
3. Change Orders: Either party may request, in writing, revisions to an Order (“Change Order”). However, Vendor shall not commence and/or furnish any Goods or Services pursuant to a Change Order until an officer of NM&C Inc. has signed the Change Order and/or NM&C Inc. has issued a revised Order for such Change Order.
4. Notice of Disallowed Specifications: In the event any Specification is not permitted or advisable pursuant to any federal, State or local law, rule, code or regulation, Vendor shall promptly notify NM&C Inc. in writing of the applicable Specification, the recommended change or modification to resolve the problem, and the relevant, law, rule, code or regulation; and, under no circumstances shall Vendor continue with such problematic Specification for the applicable Order unless and until the issue about such a Specification has been resolved and expressly agreed upon in writing by NM&C Inc.
C. VENDOR DELIVERY
1. Time of Delivery: Time is of the essence as to Vendor’s performance and delivery of each and every aspect of the Order and Contract. No change in any date or schedule referenced in an Order will be permitted without NM&C Inc.’s prior and express written consent signed by NM&C Inc.
2. Remedies: Each and every Order is subject to the remedies stated herein for NM&C Inc. if any delivery is not made, any Goods are not provided, or any Services are not performed as specified in the applicable Order or any part of the Contract with the Vendor.
3. No Waiver: No acceptance of any Goods or Services, nor a delay or lack of inspection, after the scheduled delivery date will waive NM&C Inc.’s rights with respect to such late delivery nor shall it be deemed a waiver of future compliance with the terms of any Order or any part of the Contract.
D. NM&C INC. RIGHT TO CANCELLATION FOR CONVENIENCE
1. Reservation of Right: NM&C Inc. reserves the right for its own convenience to cancel any Order, in whole or in part, without cause at any time by giving Vendor written notice of such cancellation. However, if there is any emergency need to cancel any Order, the notice to Vendor may be oral so long as such oral notice is followed by written notice within forty-eight (48) hours.
2. Vendor Duties Upon Notice: Upon Vendor’s receipt of any such notice, Vendor must immediately:
a. Suspend all performance to the extent stated in the notice;
b. Cancel all orders and subcontracts as set forth in the notice;
c. Preserve and protect any and all NM&C Inc. Property and all other materials, supplies and equipment in Vendor’s custody or control either provided by NM&C Inc. and/or purchased for performance of the Order;
d. Comply with NM&C Inc.’s directions for termination of delivery of the Order and cooperate with NM&C Inc. in making any transitions;
e. Use commercially reasonable methods to minimize the amount of third party expenses or third party termination charges associated with any such cancellation.
3. Payment Upon Exercise of Right: Upon inspection and reasonable approval of the Goods and/or Services provided by the cancellation date, NM&C Inc. will pay Vendor for such Goods and/or Services that were substantiated by Vendor’s records and that were provided in compliance with the referenced Order and Contract, less any third party termination charges (“Cancellation Payment”).
4. Additional Provisions: Under no circumstances shall:
a. Vendor or Vendor’s agents and employees be entitled to any prospective profit, damages or other amounts for alleged loss as a result of the Cancellation for Convenience.
b. The Cancellation Payment exceed the amount or price otherwise payable to Vendor pursuant to the given Order that is the subject of the notice.
c. NM&C Inc. have any liability whatsoever from the cancellation of the Order beyond the Cancellation Payment.
E. NM&C INC. RIGHT TO INSPECTION
1. Reservation of Right: All Goods and Services shall be subject to inspection and approval by both NM&C Inc. and Clients before any payment is payable or due, and Clients have the right to refuse work to be completed or as unacceptable.
2. No Waiver: NM&C Inc.’s issuance of any Order or payment to Vendor shall not be deemed a waiver of said right to inspection. No acceptance of any Goods or Services by NM&C Inc., nor any acceptance by NM&C Inc. after the scheduled delivery date, will waive the rights of NM&C Inc. and Client(s) relating to any inspection.
VENDOR RELATIONSHIP AND RESPONSIBILITIES
A. VENDOR AS INDEPENDENT CONTRACTOR
1. Vendor is a separate, independent contractor as to NM&C Inc., and no past relationship or course of dealings between the parties shall affect Vendor’s separate, independent contractor status.
2. Nothing herein will be construed as creating any agency, partnership, or other form of joint enterprise between Vendor and NM&C Inc., and under no circumstances whatsoever shall Vendor and/or its agents and employees (regardless of direct or indirect engagement, hiring or employment) be considered in an employment, partnership, joint venture or agency relationship with NM&C Inc.
B. VENDOR LICENSING AND CERTIFICATION
1. Vendor shall obtain and maintain at its sole expense and cost all licenses and certifications required by any and all federal, State and local laws, rules, codes and regulations to do business, to work in the trade or industry, and to provide any Goods or Services related to an Order or any part of a Contract with Vendor.
2. Prior to providing or attempting to provide any Goods or Services for any Order, unless there is an emergency situation as determined by Clients and NM&C Inc. (“emergency situation”), Vendor must deliver to NM&C Inc. a legible copy of the licenses and certifications required herein. In the event of an emergency situation, the Vendor must deliver said copy of required licenses and certifications to NM&C Inc. within 72 hours.
3. Vendor’s delay or failure to provide NM&C Inc. a copy of the required license(s) and certification(s) may result in delay, suspension, cancellation at Vendor’s sole expense and/or NM&C Inc.’s exercise of other rights and remedies. Further, no payment to Vendor shall be released unless and until Vendor delivers to NM&C Inc. all licenses and certification required herein.
C. VENDOR RESPONSIBILITY FOR AGENTS, EMPLOYEES AND SUBCONTRACTORS
1. Vendor’s Agents and Employees: All persons and entities hired, employed, contracted or engaged by or on behalf of Vendor for any reason whatsoever, including but not limited to all owners, officers, partners, members, employees, subcontractors, independent contractors, day laborers, volunteers, interns, representatives, subsidiaries, successors, affiliates, representatives and assigns who have been hired or used by Vendor in connection with any Order or Contract with NM&C Inc. shall be deemed Vendor’s “agents and/or employees” (and collectively referenced herein as “agents and/or employees” or “agents and employees”), and shall not be considered or deemed the agents, employees, representatives or subcontractors of NM&C Inc.
2. Drug Free Workplace and Illegal Substances: Vendor understands that NM&C Inc. has a policy of a workplace free of alcohol, drugs and illegal substances of any kind and nature whatsoever, and Vendor shall be responsible for verifying and insuring compliance with that policy for all of Vendor’s “agents and employees” relating to any Order or Contract.
3. Qualified Workers: Vendor agrees to assign only those agents and employees who are qualified, skilled and able to perform the work requested or needed for performance of the applicable Order and Contract.
4. Additional Vendor Responsibilities: For all of Vendor’s agents and employees, Vendor is solely responsible for:
a. Any and all acts and/or omissions of Vendor’s agents and employees;
b. Supervising and controlling Vendor’s agents and employees;
c. Verifying and insuring the qualifications, experience, skills, training and abilities of Vendor’s agents and employees in performing any part of the Contract;
d. Providing any and all training, direction or assistance needed for performance of any part of a Contract;
e. Compliance with the Contract by Vendor’s agents and employees;
f. All payments, wages, salaries, commissions and other compensation of any kind to Vendor’s agents and employees;
g. Payment of all premiums for the required insurance;
h. Payment of all benefits and contributions;
i. Payment of all expenses, fees and costs relating to employment;
j. Withholding and payment of any and all appropriate taxes;
k. Verifying and obtaining proper identification, a completed W-9 and proof of being legally permitted to work in the United States.
l. Complying with any and all federal, State and local laws and any employer duties and obligations.
5. OSHA: Vendor shall comply with all provisions and conditions of the Federal Occupational Safety and Health Act of 1970 (OSHA), as amended, and the standard regulations issued thereunder, and Vendor certifies that all items furnished and purchased under the applicable Order will conform to and comply with such applicable standards and regulations.
6. Removal of Vendor Agents and Employees:
a. NM&C Inc. may request removal and/or replacement of any Vendor agents and employees. Upon notice of such request, Vendor will immediately remove such agents and/or employees from performing any part of the Order and promptly replace such agents and/or employees with other qualified persons or entities reasonably acceptable to NM&C Inc.
b. Removal of any agents and/or employees will not relieve, waive, excuse, or diminish any obligations Vendor has under the Contract.
7. Insurance: To the extent any Order or Contract requires or causes Vendor and/or any of its agents and employees to provide any work or Services, to be on a Job Site (as defined herein) or to be on the premises of NM&C Inc. or any third party, or to transport Vendor agents and/or employees in connection with any Goods or Services, Vendor shall obtain, maintain and have in effect for complete performance of any Order and Contract at Vendor’s sole expense and cost the following:
a. Workers’ compensation insurance coverage that covers all Vendor agents and employees (as earlier defined herein and including subcontractors and both direct and indirect and/or statutory employees) and complies with all applicable laws for the State and jurisdiction in which any Goods or Services are provided, regardless of whether the State or jurisdiction requires such insurance, and Employer’s Liability insurance with minimum limits of at least $500,000 each accident and $500,000 each disease policy limit.
b. Commercial or Comprehensive General Liability insurance coverage on an occurrence form with a minimum combined single limit of $1 million for each occurrence, and annual aggregates of $1 million for bodily injury and property damage, including coverage for premises operations, blanket contractual liability, broad form property damage, personal injury liability, independent contractors, products/completed operations, sudden and accidental pollution and, if applicable, deletion of any explosion, collapse and underground exclusion. Vendor will keep this insurance coverage in effect for at least four (4) years after the last date of completion and final approval of an Order with Vendor.
c. Automobile Liability insurance complying with the regulatory body(ies) or entity(ies) having jurisdiction or a minimum combined single limit of $1 million each occurrence for bodily injury and property damage, whichever is greater, but to include coverage for all vehicles used in performance of work or Services related to the Order or Contract with Vendor.
d. For all of the above policies, a provision that Vendor and Vendor’s suppliers, agents and employees and the insurers for same waive any rights of subrogation or recovery they may have against NM&C Inc.
e. Insurance policies written by financially viable companies rated by A. M. Best as A-VII or better and duly licensed and authorized to do business in the State, province or territory in which Vendor is located.
f. NM&C Inc. named as an additional insured under Vendor’s policies for commercial general liability insurance and liability waiver of subrogation shall apply in favor of NM&C Inc., with respect to the workers’ compensation policy.
g. Vendor’s liability policies shall be primary and non-contributory with any insurance policy maintained by NM&C Inc.
h. Policy deductibles shall not be more than $100,000, and Vendor will notify NM&C Inc. in writing of the amount of any applicable deductibles with the proof and notice of insurance referenced below.
8. Proof and Notice of Insurance: Prior to providing or attempting to provide any Goods or Services for any Order or Contract, Vendor must deliver notice to NM&C Inc. (at the address for notice referenced herein, unless otherwise advised in a writing signed by NM&C Inc.), a legible copy of a valid certificate showing the required insurance for Vendor, unless there is an emergency situation as previously defined herein. In the event of an emergency situation, the Vendor must deliver said copy of required licenses and certifications to NM&C Inc. within 72 hours. In any event, Vendor must notify and keep NM&C Inc. informed of any cancellation, notice of cancellation and anything else that could detrimentally affect the herein required insurance and its coverage. No payment to Vendor shall be released unless and until Vendor delivers to NM&C Inc. valid proof and certification of the insurance as require herein.
9. Indemnification: Vendor agrees to indemnify and hold NM&C Inc. harmless for covered losses and/or occurrences that fall within any applicable deductible if such losses are Vendor’s responsibility under these Master Terms & Conditions and/or any Contract between the parties.
10. Insurance Does Not Limit Vendor Obligations: In no event will the insurance coverage, deductible, self-insured retention or limits of any insurance maintained by Vendor, or the lack or unavailability of any other insurance, limit or diminish in any way Vendor’s obligations or liability to NM&C Inc.
D. VENDOR ASSIGNMENT OR OTHER TRANSFER PROHIBITED
1. No Assignment: No Order nor any part of the Contract, nor any right, duty or obligation therein, may be assigned, transferred, delegated or subcontracted by Vendor without express written consent signed by an officer of NM&C Inc., and any such attempted or purported assignment, transfer, delegation or subcontract may, at NM&C Inc.’s discretion, be deemed null and void. Nothing herein prohibits NM&C Inc. from assigning, transferring, delegating or subcontracting with any other person or entity relating to any Order, Contract, or these Master Terms & Conditions, or as to any right, duty, obligation or other provision therein.
2. NM&C Inc. Reservation of Rights: Notwithstanding the foregoing, NM&C Inc. reserves all rights, defenses and remedies and may immediately terminate an Order and terminate, deny and/or remove Vendor and Vendor’s agents and employees from performance of any part of any Contract for cause, without any waiver, breach or liability by NM&C Inc., if Vendor threatens, purports to, or does any of the following before obtaining an express written agreement signed by an officer of NM&C Inc. addressing the specific issue:
a. Assign, delegate, subcontract or other transfer any part of an Order or Contract;
b. Merge, consolidate, reorganize, liquidate, or sell any part of Vendor’s business, assets or liabilities;
c. File any notice or petition for bankruptcy, or sends any statement indicating its filing or intent to file or petition for bankruptcy, reorganization, liquidation or sale regarding any part of Vendor’s business, assets or liabilities;
d. Fails to promptly pay for any products or work, or pay any of its agents and employees in connection with a Contract;
e. Engages in any act that indicates insolvency or a financial inability to meet its warranties, duties and obligations under a Contract.
PAYMENTS AND VENDOR RECORDS
A. INVOICING AND REQUEST FOR PAYMENT
1. Prompt Invoicing: Vendor will promptly invoice NM&C Inc. upon satisfactory completion of an Order and compliance with the parties’ Contract, but in no event later than five (5) business days following Vendor’s completion of the project.
2. Required Compliance with Contract: No Vendor invoice or request for payment is due or payable unless and until Vendor has complied with the parties’ Contract and the applicable Clients on a given project have notified NM&C Inc. of their acceptance of the completed work.
3. Items to Provide with Invoice: All invoices and requests for payment must include the following:
a. Order “Sign Off” sheet signed and dated by authorized site management;
b. Photographs clearly and adequately showing before and after pictures of all work to be performed and projects completed; and,
c. Where applicable, proof of compliance with the call in and out procedures of the customer IVR system with an affixed confirmation number to the applicable space on the Order.
4. Prices and Expenses:
a. Each Order shall be filled at costs or prices as shown in the applicable Order, and in no event shall any Vendor cost, expense or price be higher than the amount stated in the Order or any written amendment or modification thereto.
b. Vendor will not be entitled to reimbursement for any additional cost or expense (ie change order) unless the cost or expense is detailed on the corresponding invoice and accompanied by supporting documentation, billed at Vendor’s cost with a mark up of no more than 15%, and previously approved in an express writing signed by NM&C Inc.
c. All Orders Not To Exceed (“NTE”) include all Vendor work, products and expenses, including but not limited to labor, materials, material tax, lodging, and travel expenses of any kind.
5. Release of Payment to Vendor: Upon Vendor’s compliance and performance with the Contract and inspection and approval of the entire project by NM&C Inc. and Client(s), (and after Vendor delivers its proper invoice and ‘before and after’ project photographs), NM&C Inc. will request payment from the Client. Thereafter, and no later than fifteen (15) business days following receipt of payment from the Client for the project, NM&C Inc. agrees to release payment to Vendor.
6. Late Delivery: To the extent that Vendor fails to furnish Services by the applicable delivery date or performance schedule, NM&C Inc. will be entitled to a five percent (5%) discount off the total fees and/or invoiced amount for the applicable late delivery/performance. Such discount will be refunded to NM&C Inc. or, at NM&C Inc.’s option, credited against future amounts owed to Vendor, if any.
7. Taxes: Vendor will be solely responsible for all of its income taxes and any other taxes, penalties, fines or charges assessed against Vendor or associated with the operation of Vendor’s business.
B. VENDOR RECORDS
1. Vendor Payments to Third Parties: All payments that Vendor makes to third parties in the performance of any Contract or in the conduct of NM&C Inc.’s business shall be supported by written, complete and accurate invoices that shall be maintained by Vendor as required herein and made available to NM&C Inc. for inspection upon NM&C Inc.’s request. Lien release from suppliers or proof of suppliers invoice paid by Vendor for said project is required before NM&C Inc.’s release payment to Vendor.
2. Vendor Duty to Produce Records: At the request of NM&C, or if otherwise required by Clients and/or for government contracts, Vendor shall maintain and produce to NM&C Inc. within three (3) business days of NM&C Inc.’s request an accurate and legible copy of all pricing, time-sheets, accounts and other records relating to any and all Goods and Services, Orders and Contracts, and all rights, duties and obligations therein.
a. Time Period: The provision herein for Vendor’s maintenance and production of records shall continue for twenty-four (24) months following the date of NM&C Inc.’s final inspection and/or approval for an applicable Order and Contract.
b. Failure to Comply: Vendor’s delay or failure to maintain or produce any records or other information as required herein may result in delay or cancellation of payment to Vendor and NM&C Inc.’s exercise of all other rights and remedies.
C. PAYMENT DISPUTES
1. Correction of Payment: If Vendor incorrectly applies NM&C Inc.’s payment (in whole or in part) to an Order or invoice other than to the Order or other identifying number referenced by NM&C Inc. for the applicable Goods and/or Services or any Order, Vendor will promptly correct such application of payment and issue a written confirmation of such correction to NM&C Inc.
2. Withholding Payments: NM&C Inc. may withhold payments for any or all item(s) on Vendor’s invoice for Vendor’s failure to perform or comply with any part of any Order or Contract.
3. No Default by NM&C Inc.: Pending resolution of the dispute(s) or performance issues referenced above, NM&C Inc.’s non-payment will not constitute a default or breach and will not entitle Vendor to suspend, delay or cancel the provision of any Goods or Services, nor the performance of any part of any Order or Contract.
STANDARDS AND WARRANTIES
A. STANDARDS AND WARRANTIES FOR GOODS AND SERVICES
1. Use of Specific Brand, Make or Model: If a specific brand, manufacturer, make, model or label is stated in an Order or other part of the Contract (“Contract Brand”), Vendor expressly warrants and guarantees that it shall use and/or provide said Contract Brand in performance of the applicable Order and Contract.
2. Other Express Warranties: Unless otherwise expressly stated in the applicable Order, Specifications or a specific written amendment or modification signed by NM&C Inc., Vendor further expressly warrants, covenants and guarantees that:
a. All Goods provided and used shall be:
i. Of a high commercial quality and standard used in Vendor’s industry;
ii. New and free from defects in design, materials and workmanship;
iii. Cleaned and kept in good and marketable condition until final delivery, inspection and acceptance;
iv. In conformity and compliance with all Specifications for the applicable Order;
v. Packaged, labeled and shipped in accordance with high commercial standards and practices;
vi. Fit for the particular purpose for which they are ordinarily intended;
vii. In compliance with all applicable federal, State and local laws, rules, codes and regulations.
b. All Services and work provided or performed by Vendor and its agents and employees in connection with any and all Orders and Contract shall be:
i. Delivered and performed in a professional and workmanlike manner in accordance with the commercial practices and standards generally accepted in Vendor’s industry, and free from defects in design, materials and workmanship;
ii. Meet or exceed all applicable federal, State and local laws, rules, codes and regulations.
iii. Comply with the schedule, hours and regulations specified by NM&C Inc., a Client, or property owner or manager for the work premises, Client premises or applicable job site or location (“Job Site”); and,
iv. Comply with all other labor, wage and employment agreements, requirements and regulations.
c. All Goods and Services, and the purchase, installation and use thereof, shall not violate, breach or infringe upon any patent, trademark, copyright, franchise, license, or other intellectual property right.
d. Vendor shall perform and carry out all work and Services so that the premises and any affected areas are at all times orderly, clean, safe and free from debris and, upon completion and delivery of the Goods and/or Services under the applicable Order, Vendor shall remove all equipment and unused materials and supplies from the project, clean up all refuse and debris and leave the site of the work in a clean, orderly, safe and good condition.
B. FINANCIAL ASSURANCES OF VENDOR
1. Financial Ability: Vendor represents, warrants, and covenants that Vendor has, and will have at all times during performance of the applicable Order and Contract, the financial viability to fulfill its obligations under the Contract, and that Vendor is not insolvent nor in default on any other contract with any third party.
2. Notice: Vendor will provide prompt written notice to NM&C Inc. of any event or condition that results in, or is reasonably likely to result in, a material adverse change to Vendor’s financial condition, reputation or operation.
3. Vendor Equipment: Vendor, at its sole cost and expense, will provide all Information Systems, equipment, materials and/or facilities, as well as any support and maintenance of any of the foregoing, as necessary for its performance of the Agreement.
C. SAFETY ASSURANCES
1. Vendor Precautions: Vendor assures and warrants that it shall:
a. Take precautions to protect all property and persons from damage or injury arising out of its work and performance of any part of the Contract;
b. Comply with all Safety Rules established by NM&C Inc. and/or the Client, a copy of which are available upon request.
c. Comply with all other fire, safety and other applicable laws, rules, codes and regulations prescribed by any government entity, Client, property owner and/or NM&C Inc.; and,
d. Be responsible for observance of such precautions and compliance by all Vendor agents and employees and all other persons and entities Vendor permits on or in the premises or Job Site.
2. Warnings: Regarding any material that is or can be hazardous to a person’s health or personal safety (resulting from mishandling or the nature of the material itself), and that Vendor intends to use in performing any part of the Contract, Vendor shall:
a. Identify such material in a written notice delivered to NM&C Inc. before commencing any part of the Order;
b. Supply warning labels and instructional materials appropriate to warn persons coming in contact with any such hazardous material of the hazard and its effect.
3. Notice: Vendor shall promptly deliver written notice to NM&C Inc. of any person or condition that appears to be danger or hazard to any person or property in Vendor’s performance of the Contract and take any action reasonably necessary to prevent injury to a person or destruction to property.
4. Reservation of Rights: NM&C Inc. has the right to exclude immediately from its premises and any Job Site any and all persons and entities who threaten (directly or indirectly) to violate or appear to be violating or failing to comply with any of the foregoing “Safety Assurances.”
D. FREEDOM FROM LIENS AND ENCUMBRANCES
1. No Liens or Encumbrances: Vendor expressly warrants and guarantees that all Goods and Services, and any related work, products, premises and job site in connection with any and all Orders, shall be free from all mechanics’ and materialmens’ liens, claims and encumbrances. This does not mean that the Vendor cannot file a proper lien if it is not paid as required, but it does require the Vendor to pay any workers and third parties and do what is needed to prevent those persons and entities from placing a lien on the project, job site, or in connection with the Clients or NM&C Inc.
2. Prompt Payments by Vendor: Vendor shall promptly pay for all labor and material and make every effort to avoid and prevent such liens, claims and encumbrances. If Vendor fails to do so, NM&C Inc. may, without prior notice to Vendor, without any obligation to do so and without waiving any of NM&C Inc.’s other rights, claims, defenses or remedies for Vendor’s failure, do one or both of the following:
a. Pay for such labor and/or material and deduct the amount of such payments from sums due to Vendor under any Order or Contract with NM&C Inc. ; and,
b. Withhold any and all payments from Vendor until and unless Vendor provides adequate assurances, affidavits and documents to provide written proof of the satisfaction and release of any and all liens, claims and encumbrances as NM&C Inc. may require.
E. ADDITIONAL VENDOR WARRANTIES AND ASSURANCES
1. Legal Status and Compliance: Vendor warrants and guarantees that it has all registrations, licenses, certifications and permits required and reasonably needed to perform and comply with the Contract and that Vendor will comply with all applicable federal, State and local laws, rules, codes and regulations in the performance of each and every part of the Contract.
2. Liability for Defects and Breaches: Vendor shall be liable for all damages both to NM&C Inc., Client and any third persons or entities that are incurred as a result of any defect or breach of warranty relating to any Goods, Services, work or product provided in connection with any Order or Contract.
3. NM&C Inc. and Client Trademarks: Vendor is not authorized to use, and shall not use, NM&C Inc. and Client trademarks, logos, service marks, trade names and/or legal notices of any kind.
4. Customary Warranties: The foregoing express warranties shall be in addition to any warranty customarily made by Vendor of its products, work or services, and any implied warranties and shall be construed as conditions as well as warranties.
5. Period of Warranties: All of the warranties and guarantees referenced herein shall extend for a period of twelve (12) months after the date Vendor completes the applicable Order in compliance with the Contract, unless otherwise specified in the applicable Order or written addendum.
NM&C INC. MATERIALS AND RISK OF LOSS
A. NM&C INC. PROPERTY
1. Title to NM&C Inc. Property: Any and all materials, supplies, equipment, Specifications, and Confidential Information furnished or otherwise provided by or on behalf of NM&C Inc. (collectively referred to herein as “NM&C Inc. Property”) in connection with any Order shall be deemed as held by Vendor in trust for use and application for the Order, and title of such NM&C Inc. Property shall at all times remain with NM&C Inc. Further, all rights, title, and interests in the NM&C Inc. Marks and the goodwill pertaining thereto are the exclusive property of NM&C Inc. Vendor will not at any time dispute or contest, directly or indirectly, NM&C Inc.’s exclusive rights and title in the NM&C Inc. Property and NM&C Inc. Marks and goodwill.
2. Nondisclosure: Vendor shall not disclose any drawings, blueprints, specifications to any persons or entities other than those approved by NM&C Inc.
3. Inventory: Upon NM&C Inc.’s request, Vendor shall deliver a written inventory to NM&C Inc. of all of NM&C Inc. Property in Vendor’s custody or control.
4. Additional Vendor Duties and Risk: NM&C Inc. Property, while in Vendor’s custody or control, shall be:
a. Held and maintained at Vendor’s sole risk;
b. Adequately marked for identification purposes;
c. Segregated from Vendor’s materials, supplies and equipment;
d. Kept insured at Vendor’s expense at an amount equal to the replacement cost; and,
e. Subject to removal at NM&C Inc.’s request; and,
f. Returned to NM&C Inc. in the same condition as originally provided to Vendor, subject to reasonable wear and tear.
B. RISK OF LOSS
1. All Goods, Services and other work and products of any kind provided by Vendor in connection with any Order or Contract shall remain at Vendor’s risk prior to final inspection, approval and acceptance by NM&C Inc. and/or the owner of the project.
2. Vendor shall repair at its own expense and cost all Goods, Services, work and products destroyed by any cause whatsoever prior to the final inspection, approval and acceptance by NM&C Inc. and/or the owner of the project.
C. FORCE MAJEURE
1. As to NM&C Inc.: Strikes, fires, accidents, government intervention, or any other cause beyond the reasonable control of NM&C Inc., which affects NM&C Inc.’s ability to receive or use any Goods or Services and/or to perform any part of the Contract, shall entitle NM&C Inc. to:
a. Suspend acceptance or delivery of any Goods or Services, without expense, cost or penalty to NM&C Inc., and with such suspension being effective upon NM&C Inc. sending notice to Vendor; and/or
b. Cancel the Order as a result of the cause(s) of the aforementioned suspension, in which case the provisions for “Cancellation for Convenience” (as stated in these Master Terms & Conditions) shall apply.
2. As to Vendor:
a. Strikes, fires, accidents, government intervention, or any other cause beyond the reasonable control of Vendor, which affects Vendor’s ability to perform under the Order (“Vendor Force Majeure”), shall entitle Vendor to suspend its obligation to perform to the limited extent affected.
b. Vendor shall notify NM&C Inc. in writing of any occurrence of any Vendor Force Majeure as soon as practicable but no later than three (3) days after Vendor first becomes aware of the occurrence of the event or the likelihood of the occurrence of the event.
c. If such Vendor Force Majeure is reasonably anticipated by NM&C Inc. to result, or does in fact result, in a suspension of longer than thirty (30) days from the date of Vendor’s notice to NM&C Inc. (or such shorter time as is material to any schedule set forth for an affected Order), NM&C Inc. shall have the right cancel the affected Order immediately upon written notice to Vendor. Any such cancellation shall be without expense, cost or penalty to NM&C Inc. with regard to any Goods and Services not delivered prior to the date of cancellation.
d. Until and unless NM&C Inc. exercises its right of cancellation, Vendor shall continuously and diligently use reasonable efforts to overcome as quickly as possible the effects of the Vendor Force Majeure.
e. If the affected Order is not cancelled as provided in this section, the date of delivery of affected Goods and Services will be revised or extended for a period of time reasonably necessary to overcome the effect of the Vendor Force Majeure.
CONFIDENTIAL INFORMATION AND SECURITY
A. NM&C INC. CONFIDENTIAL INFORMATION
1. Confidential Information: This term or phrase, as used herein, means and includes the following:
a. Information disclosed by NM&C Inc. to Vendor and/or its agents and employees, either directly or indirectly, in writing, orally, or by inspection of tangible objects that is designated as “Confidential,” “Proprietary,” or some similar designation;
b. All Specifications and the terms of all Orders and any amendments or modifications thereto;
c. All NM&C Inc. information referring or relating to:
i. Business practices and procedures of NM&C Inc.;
ii. Finances, banking and accounting information, practices or procedures relating to NM&C Inc.;
iii. NM&C Inc. personnel, staffing and employee information, including but not limited to information relating to their names and addresses, telephone numbers, contact information, compensation, benefits, medical history, employment history, and background information;
iv. Product, customer and business development by NM&C Inc.;
v. Computer data, software and programs created, purchased or used by NM&C Inc.;
vi. Specifications for all Orders and Contracts, and all terms and conditions for any and all Orders;
vii. Any and all intellectual property of NM&C Inc.
viii. Names, contact information and the history of any Orders, work, services, purchases, bids, proposals, and negotiations of any kind in connection with any current and prospective Clients and customers, with whom NM&C has at any time done or intended to do any business, and/or to whom NM&C Inc. has ever submitted or prepared to submit any offer, bid or proposal;
ix. Names, contact information and the history of any Orders, work, services, purchases, bids, proposals, and negotiations of any kind in connection with any current and prospective vendors, suppliers and subcontractors, with whom NM&C has at any time done or intends to do any business, and/or to whom NM&C Inc. has ever submitted or prepared to submit any Order, offer, bid or proposal;
2. Public Information: Confidential Information will not include any information which:
a. Was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party;
b. Becomes publicly known and made generally available after disclosure by the disclosing party through no action or inaction of the receiving party;
c. Was already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files, records, and/or other competent evidence immediately prior to the time of disclosure;
d. Is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality;
e. Is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
3. Nondisclosure of Confidential Information:
a. Under no circumstances and at no time may Vendor, its agents and/or employees:
i. Disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information of NM&C Inc. (except to disclose or make available, in Vendor’s case, to NM&C Inc. or specific Vendor agents and employees who have a legitimate need to know such Confidential Information);
ii. Use, reproduce, or copy in any form any Confidential Information, except as necessary in connection with or as set forth in the Contract between the parties.
iii. Fail or refuse to cooperate promptly upon NM&C Inc.’s request in the return of such Confidential Information to NM&C Inc. and the destruction of any copy, reproduction or record of any Confidential Information.
b. In the event that Vendor or any of Vendor’s agents and employees violate or fail to comply with the provisions in this Section regarding “Fairness and Interference with NM&C Inc. Business,” Vendor and those agents and employees shall be deemed to be in material breach of the provisions herein regarding Confidential Information and to be causing NM&C Inc. immediate and substantial harm.
c. If Vendor receives any inquiry, request or complaint relating to Confidential Information of NM&C Inc., Vendor will promptly deliver notice to NM&C Inc. in such form and manner, and with such particulars, as NM&C Inc. may require. If NM&C Inc. notifies Vendor that it requires assistance in investigating or responding to the inquiry, request or complaint, Vendor will fully cooperate with NM&C Inc. by furnishing NM&C Inc. with complete information concerning its collection, use and disclosure of the Confidential Information, including responding, if requested to do so, to any inquiry by a regulatory authority and/or to any request, claim or complaint. If any inquiry, request or complaint gives rise to regulatory, administrative or court proceedings of any kind whatsoever, Vendor will cooperate in the conduct of such proceedings, including attending hearings and assisting in securing and giving evidence and obtaining the attendance of witnesses.
d. In response to specific subpoenas, court orders, other legal processes, or as otherwise required by law, Vendor may disclose Confidential Information provided that the Vendor:
i. Promptly delivers written notice to NM&C Inc. of such subpoena, court order, legal process or other legal requirement within three (3) business days of Vendor’s receipt or knowledge of same (or sooner if material to timely compliance) prior to any disclosure;
ii. Promptly objects to disclosure and takes all reasonable steps and efforts to protect the Confidential Information from public disclosure, with the heightened duties similar to those of a trustee’s fiduciary duties; and,
iii. In providing any Confidential Information, such disclosure is strictly limited to the minimum extent necessary to comply with the legal requirement.
4. Property of NM&C Inc.: Vendor and its agents and employees shall have no rights in the Confidential Information of NM&C Inc. All Confidential Information will remain the property of NM&C Inc., and all documents, electronic media, and other tangible items or portions thereof, which contain any Confidential Information will be delivered to NM&C Inc. promptly within three (3) business days upon NM&C Inc.’s written request. Notwithstanding the foregoing, NM&C Inc. will not be required to remove copies of Vendor’s information from any backup media or servers. Nothing contained in these Master Terms & Conditions or any Contract will prevent Vendor or NM&C Inc. from complying with applicable privacy laws, rules and regulations. Vendor must not issue or make, directly or indirectly, any press releases or other public announcements relating to any Order, Contract, or other business or transaction(s) between NM&C Inc. and Vendor without the prior written approval of NM&C Inc., for which NM&C Inc. reserves to the right to withhold approval in its sole discretion.
B. FAIRNESS AND INTERFERENCE WITH NM&C INC. BUSINESS
1. Fairness and Solicitation: Under no circumstances is Vendor to provide or offer to provide any payment, compensation, benefit, or gift to any NM&C Inc. employee, contractor, Client or Client’s employee to gain any advantage that appears to be against NM&C Inc. interests or that appears to interfere with NM&C Inc. business in any way.
2. Other Interference with NM&C Inc. Business: Upon issuance of an Order and until six (6) months following completion, cancellation or other termination of any Order or Contract, Vendor is strictly prohibited from soliciting, bidding, or providing any product, work or service to any of NM&C Inc.’s current or potential Clients, unless the Vendor can provide proof of a vendor customer relationship prior to the Order from NM&C Inc.
C. JOB SITE ACCESS AND SECURITY
1. Job Site Access: If any part of an Order or Contract is to be performed at a Client location or job site not owned by Vendor (“Job Site”), NM&C Inc. will take reasonable steps to permit Vendor reasonable access to the applicable Job Site(s) subject to the terms of these Master Terms & Conditions and any Client or property owner rules, guidelines, policies and procedures, which will be made available to Vendor.
2. Identification of Vendor Agents and Employees:
a. Vendor will promptly deliver to NM&C Inc. a written list of the names, addresses, telephone numbers, and respective title and/or position of all foremen, managers and lead persons for Vendor that require access to the Job Site(s) or to whom Vendor will at any time providing access to the Job Site(s) for any reason (hereinafter referred to as the “Vendor Personnel List”).
b. For certain projects, for which Vendor will receive advance notice, Vendor agents and employees may also be required to wear identifying badges, name tags or clothing as provided or permitted by NM&C Inc.
3. Background Checks:
a. If required by any Client and upon notice from NM&C Inc., Vendor will promptly conduct a background check as stated in such notice on all Vendor agents and employees (which may include criminal records and civil judgments, professional license verifications, motor vehicle records, social security number, court records, military service records, other public records reports, and verifications of employment and education) at Vendor’s expense and prior to any such Vendor agents and employees undertaking any action in connection with an Order or Contract.
b. Additionally, from time to time at NM&C Inc.’s discretion, NM&C Inc. may conduct background checks and investigations of any Vendor and/or any Vendor agents and employees.
c. At no time shall Vendor permit any Vendor agents and employees, or any other person or entity, to undertake any action in connection with an Order or Contract if Vendor or any of Vendor’s owners, officers, members, or representatives, knows or has any reason to know that any of Vendor’s agents and employees does not have proper identification, licensing, certification or authorization to provide the Goods or perform the Services or other work which is sought from such agents and/or employees, or is not otherwise legally authorized to work in the United States.
4. Denial or Removal of Access: In addition to NM&C Inc. rights and remedies stated herein, any Vendor and Vendor agents and employees may be denied access or removed from access from any Job Site(s) and/or removed from any Vendor Personnel List at NM&C Inc.’s discretion if such Vendor and/or any Vendor agents and employees fail a background investigation or threaten (directly or indirectly) to violate or appear to be violating any provision in these Master Terms & Conditions.
5. Termination of Vendor or Vendor Agents and Employees: Immediately upon termination of any Vendor or Vendor agents and/or employees, Vendor will promptly provide written notice to NM&C Inc. and return all security badges, tags, clothing, access cards, NM&C Materials or other property and Confidential Information of NM&C Inc. or any Client that had been provided or used by such Vendor and/or Vendor’s agents and employees. Failure to return any badge, clothing, access card or other property as required herein may result in NM&C Inc. charging an additional $100 administrative fee for each and every item in addition to charges for the replacement cost of the item(s) and NM&C Inc.’s exercise of all other rights and remedies.
6. No Waiver: NM&C Inc. reserves all rights and defenses in granting access to any Job Site(s) to any Vendor or Vendor agents and employees and shall not be deemed to have waived such rights and defenses under any circumstances. Upon NM&C Inc.’s exercise of any denial, the removal or limitation of access for Job Site(s) as permitted herein shall not be deemed a breach or default by NM&C Inc.
BREACHES AND REMEDIES
A. BREACH AND DEFAULT
1. Breach: A breach may occur if either party fails to perform or be in compliance with any part of an Order, these Master Terms & Conditions or any other part of the Contract.
2. Material Breach: Vendor’s duties, obligations, assurances and warranties (“Vendor Duties”) under an applicable Order and Contract are material to the parties’ agreement, and any failure by Vendor to perform or be in compliance with such Vendor Duties shall be deemed a material breach.
3. Default: A party will be deemed to be in default for a material breach of any part of these Master Terms & Conditions or any other part of a Contract if, after an opportunity to cure as permitted herein, a party fails to cure any breach.
4. Opportunity to Cure:
a. In the event of Vendor’s breach for failure to pay any person or entity as required herein, Vendor may have an opportunity to cure the breach within five (5) business days of receiving notice of such breach from NM&C Inc., or such additional time as permitted in the notice.
b. In the event of any other breach deemed to be material, and provided the breach does not pose a risk of safety, security or physical injury to a person or entity, the breaching party shall have ten (10) days to cure the breach after receiving notice of such breach from the non-breaching party, or such addition time as permitted in the notice.
c. In the event of any other breach not deemed to be material herein, and provided it does not pose a risk of safety, security or physical injury to a person or entity, the breaching party shall have twenty (20) days to cure the breach after receiving notice of such breach from the non-breaching party, unless the notice provides for a longer time.
d. In the event of a breach that poses a risk of safety, security or physical injury, the breaching party must cure the breach immediately or as soon as reasonably able upon receiving notice or becoming aware of the problem through any source.
e. However, in the event Vendor breaches a material provision of any part of a Contract three (3) or more times in any three (3) month period, Vendor loses the opportunity to cure any and all breaches, without further notice from NM&C Inc.
In addition to all other rights, claims, defenses and remedies stated herein, the parties may have the following remedies in the event of a default by the other party to a Contract:
1. Termination After Default: Where a party defaults as to a Contract, and after any opportunity to cure a breach as provided herein, the non-defaulting party may terminate the Order or Contract.
2. Effect of Termination: Upon termination of an Order or Contract, in whole or in part, NM&C Inc., as its sole liability, will pay Vendor for:
a. Services completed and accepted; and,
b. Costs incurred and approved in writing by NM&C Inc., prior to the termination date. (NM&C Inc. will not be responsible for any penalties, re-stocking fees, or similar charges resulting from its termination of an Order.)
3. Continuation of Services: If Vendor provides any Goods or Services after the termination date of an Order, in whole or in part, NM&C Inc. will not be liable for any fees, costs, taxes or charges. Upon termination of a Contract or any portion thereof, Vendor will:
a. Provide the Goods and Services until the effective date of such termination (except as otherwise instructed in writing by NM&C Inc.), terminate the Services in an efficient, workmanlike and cost-effective manner, and cooperate with NM&C Inc. in the transition as requested by NM&C Inc.;
b. Return to NM&C Inc. all NM&C Inc. Property; and,
c. Return to the NM&C Inc. any security badges, access cards and clothing issued to Vendor.
4. Survival of Master Terms & Conditions: The termination of any part of an Order or part of a Contract will not automatically result in the termination of these Master Terms & Conditions. These Master Terms & Conditions will survive to the extent reasonable to permit enforcement and compliance with NM&C Inc.’s rights and Vendor’s warranties, duties and obligations herein.
5. Other Remedies Upon Default:
a. Damages: Upon a material breach of a Contract, the non-breaching party may be entitled to damages, unless otherwise prohibited herein, in addition to other rights and remedies.
b. Repair, Replace, Modify or Refund: Upon Vendor’s default, NM&C Inc. may choose (at its discretion) to require Vendor to:
i. Repair or replace at Vendor’s cost and at no cost to NM&C Inc. the affected Goods and/or Services;
ii. Modify the affected Goods and/or Services so that such Goods and Services conform or become non-infringing without detracting from their functionality or performance; or,
iii. If the foregoing alternatives are not commercially available, deliver a refund to NM&C Inc. within ten (10) business days of all fees paid to Vendor for such non-conforming or infringing Goods and Services.
c. Temporary Restraining Order and Injunction: If Vendor or any of Vendor’s agents and employees threaten to violate or appear to be violating any portion of Section 7 herein (regarding “Confidential Information and Security”), NM&C Inc. has the automatic and immediate right, without prior notice to Vendor, to request and obtain a Temporary Restraining Order and permanent injunction against Vendor and Vendor’s agents and employees to prevent such threat and/or apparent violation without the need to post any bond whatsoever. This remedy provision supersedes and takes precedence over any other term, condition or provision that appears to be in conflict or to the contrary. Vendor understands and agrees that any apparent, threatened or potential breach of any portion of Section 7 will cause immediate, substantial and irreparable harm to NM&C Inc. and potentially NM&C Inc. Clients. Vendor further understands and agrees that this right and remedy is a material provision and condition to the Contract and vital to protect NM&C Inc.’s business and other persons who could be involved or harmed. Under no circumstances may Vendor dispute or object to this provision, and Vendor hereby knowingly and voluntarily waives any and all objections thereto.
C. LIMITATION OF LIABILITY
Except for Vendor’s breach of its obligations as to Sections 2, 3, 5 and 7 above, and Vendor’s indemnification and hold harmless obligations herein, in no event will Vendor and/or NM&C Inc. be liable for any indirect, special, incidental, consequential, punitive or exemplary damages arising out of or in connection with any Contract.
D. INTEREST, ATTORNEY FEES AND COSTS
In the event of any dispute as to any part an Order or Contract, or any other agreement between the parties, in whole or in part, the prevailing party shall be entitled to interest on all damages and other amounts due at ten percent (10%) per annum or the legal rate of interest (if the legal rate is less), in addition to all attorney fees and costs, including without limitation all court costs, accounting fees, investigative fees and costs, and appellate fees and costs.
E. INDEMNIFICATION AND HOLD HARMLESS
Vendor shall indemnify, defend and hold harmless NM&C Inc. and NM&C Inc.’s owners, officers, employees, agents, representatives, successors, affiliates, assigns, Clients and Clients’ owners, officers, employees, agents, representatives, customers, invitees, guests, landlords and property management representatives (hereinafter collectively referred to as “NM&C Inc. and Clients”) from any and all lawsuits, damages, injuries, expenses, liabilities, claims, actions and defenses of any nature whatsoever (collectively referenced herein as “claims and actions”) resulting from any failure, breach, or default in Vendor’s performance of or compliance with any part of an Order or Contract with NM&C Inc., and/or resulting from any act or omission of any kind by Vendor and/or its agents and employees (as Vendor “agents and employees” are defined herein, and regardless of whether or not the act is deemed to be negligent or intentional), and in doing so, Vendor shall bear all expenses, costs and fees for any and all court costs, investigation, accounting, attorney fees and costs, and appellate fees and costs, for such claims and actions.
A. MATERIAL PROVISIONS
All provisions in each Order, Specification, and the other documents that constitute the Contract between the parties shall be deemed a material part of each and every Order and Contract between the parties, upon which NM&C Inc. is deemed to rely in issuing any Order, agreeing to any modification, making any payment, entering any Contract, and doing any business with Vendor.
1. All notices will be in writing and delivered by email with delivery receipt, facsimile with confirmation of transmission, overnight courier with tracking number, or mailed via United States Postal Service (“USPS”) certified/return receipt to the recipients as set forth below:
NM&C Inc. Notice Address
3898 Via Poinciana Drive
Lake Worth, FL 22467
With Copy to: NM&C Inc. Counsel
Deborah S. Martin, Esq.
Vendor Notice Address: At the address, facsimile and/or email(s) set forth on the applicable Order or Vendor email, correspondence, or confirmation.
2. Except as otherwise provided herein, all notices will be deemed received as follows:
a. One (1) business day after deposited with a nationally recognized overnight carrier service, such as FedEx or UPS;
b. Five (5) days after the day deposited with the USPS (with proof of mailing from USPS;
c. The day emailed with delivery receipt, if emailed during normal business hours; or
d. The day transmitted by confirmed facsimile transmission, if transmitted during normal business hours.
3. Either Party may update its notice address by sending written notice of such change to the other Party as set forth in this Section.
C. NO THIRD PARTY BENEFICIARIES
Nothing contained in the Contract is intended to, or will be construed to, confer upon any other person or entity not a party hereto (except for NM&C Inc. successors, subsidiaries, affiliates, assigns and Clients) any rights or benefits of any kind, and no such third person or entity will be deemed a third-party beneficiary under the Contract. Notwithstanding the foregoing, NM&C Inc. successors, subsidiaries, affiliates, assigns and Clients will be third-party beneficiaries to the Contract and will be entitled to directly enforce, and rely upon, any provision in the Contract which confers a benefit on, or rights in favor of, NM&C Inc.
D. NON-RESTRICTIVE RELATIONSHIP
The relationship of the parties is not exclusive. Nothing in these Master Terms & Conditions nor any part of the Contract will be construed as preventing Vendor or NM&C Inc. from independently developing or providing services which may be similar to the Services, provided Vendor does not violate the specific provisions herein relating to Confidential Information, Fairness and Interference with NM&C Inc. Business in Section 7.
No waiver by either Party of a breach of any provision hereof will be taken or held to be a waiver of any other breach of such provision or a waiver of the provision itself.
If any provision(s) in the Contract is held to be invalid, illegal or unenforceable, such invalidity, illegality, or unenforceability will not affect the other provisions of the Contract. Moreover, if any provision(s) in the Contract is held to be excessively broad as to duration, geographical scope, activity, or subject, it will be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law.
G. GOVERNING LAW, JURISDICTION, VENUE AND WAIVER OF JURY
Any and all Orders and Contract, or part thereof, and any dispute relating thereto will be governed by the laws of the State of Florida, without regard to conflict/choice of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. Vendor agrees to submit to the sole and exclusive venue and jurisdiction of the State and federal courts located in West Palm Beach or Palm Beach County, Florida, and Vendor hereby knowingly and voluntarily waives any and all objections thereto. Vendor further knowingly and voluntarily waives any all rights to a trial by jury. Any claim against NM&C Inc. will only be adjudicated on an individual basis and will not be consolidated in any proceeding with any claim or controversy of any other party.
H. ENTIRE CONTRACT, AGREEMENT AND AMENDMENTS
The applicable Order and any Change Order or modification or amendment thereto, all Specifications for the applicable Order or modification or amendment, and these Master Terms & Conditions constitute the Contract and the entire agreement between NM&C Inc. and Vendor, and supersedes any and all other agreements and understandings between NM&C Inc. and Vendor, whether oral or written, with respect to the subject matter hereof. In the event of a conflict between the provisions of the Master Terms & Conditions and any Order or other part of the Contract, the Master Terms & Conditions will control unless such provisions are more detailed and expressly state the intent to modify the Master Terms & Conditions and the term or condition to be modified is clearly identified. The terms and conditions on Vendor’s invoice, quotation or other document will not be binding and will not supersede, supplement, or modify the Order or any other part of the Contract. NM&C Inc. may change the Master Terms & Conditions at any time by posting such on the applicable NM&C Inc. website, web page and/or URL site, or by sending separate notice to Vendor via email, facsimile, regular mail, or in digital or electronic format; such revised Master Terms & Conditions will supersede and replace the earlier Master Terms & Conditions upon posting or, if applicable, upon sending the separate notice. Any provision of Goods or Services after the date such revision is posted or sent (if applicable) will be deemed to be acceptance by Vendor of the revised Master Terms & Conditions.
I. CUMULATIVE RIGHTS AND REMEDIES
The rights and remedies of NM&C Inc. are not exclusive and may be exercised alternatively or cumulatively, with any other rights and remedies available under these Master Terms & Conditions, the parties’ Contract, or in law or equity.
J. CONTRACT ACCEPTANCE AND COUNTERPARTS
Any Order, Change Order, modification or amendment to the Contract requiring signatures may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Vendor’s online, emailed, faxed, electronic, or scanned acceptance of any or all portions of an Order or the Contract will be deemed an execution for purposes of the preceding sentence. Vendor will not have the right to object to the manner (i.e., online or emailed acceptance, electronic signatures, fax, or scanned images of signature pages) in which a Contract was executed as a defense to Contract enforcement.
K. CAPTIONS AND CONSTRUCTION
Captions in these Master Terms & Conditions are for convenience only and will not affect the interpretation or construction. No part of the Contract will be construed or interpreted against the drafting party. As used herein: a) “days” mean calendar days unless otherwise stated; b) “include” and “including” mean “including, without limitation;” c) “and,” “or” and “and/or” are deemed to be equivalent and may be used interchangeably; and, d) “will,” “shall,” and “must” are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable.
L. AUTHORIZATION FOR AGREEMENT
Any and all persons who by written, digital, electronic, email, or facsimile method sign, agree and/or accept for or on behalf Vendor thereby warrant and represent that they have authority to accept the Order, enter the Contract, and legally bind Vendor. If it is later asserted or found that such persons do or did not have such authority for or on behalf of Vendor, then in addition to NM&C Inc. pursuing all rights, claims, actions and remedies against Vendor and without NM&C Inc. waiving anything regarding Vendor’s responsibility for the Order and Contract, then such persons will be deemed to have signed not only as Vendor representatives but also personally as individuals and to be personally, jointly and severally responsible for the Order, Contract and all other rights, claims, actions and remedies permitted by equity or law.