Standard Terms and Conditions
Customer hereby acknowledges and accepts that all work, service, and/or goods provided by Zenith Excavating, LLC dba Zenith Excavating, LLC. ("Company"), shall be governed by the following terms and conditions:
1. ACCEPTANCE. Customer's acceptance of the goods and/or services constitutes Customer's acceptance of all Terms and Conditions contained herein. Any inconsistent or additional terms contained in Customer's order or otherwise are hereby rejected unless expressly accepted in writing by Company. The Terms and Conditions as stated herein shall not be modified other than in writing signed by Company and Customer.
2. DELAY IN PERFORMANCE. Company shall not be responsible or liable for any delays or failures in manufacture or delivery due to any cause or condition beyond the control of Company including, without limitation, strikes or labor difficulties, weather conditions, fire, floods, inability to secure transportation facilities, actions of the elements, shortage of materials or equipment, pandemics, riots or other civil commotions, acts of God, war, and/or terrorism.
3. LIMITED WARRANTY. Company, at its sole option, will repair or replace any of the products or services which fail to meet Customer's specifications or are due to Company's defective materials or workmanship; provided, however, if Company determines that repair or replacement is not commercially practicable, Company shall issue a credit in favor of Customer in an amount not to exceed the purchase price of the products or services. All claims for breach of this warranty must be made to Company within ten (10) days after the date of installation of the products and/or services. Company's warranty shall extend only to the original Customer from Company. Company's warranty does not cover the effects of normal wear, tear, deterioration, abuse, or failure to maintain of products or equipment.
EXCEPT FOR THE LIMITED WARRANTY AS DESCRIBED ABOVE, THERE ARE NO OTHER WARRANTIES OR GUARANTEES, EITHER EXPRESS OR IMPLIED, WRITTEN, ORAL OR ARISING UNDER CUSTOM OF TRADE INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. NO WARRANTIES OR REPRESENTATIONS AT ANY TIME MADE BY ANY REPRESENTATIVE OF COMPANY SHALL BE EFFECTIVE TO VARY OR EXPAND THE ABOVE-REFERENCED LIMITED WARRANTY OR ANY TERMS HEREOF.
4. LIMITATION OF LIABILITY. In no event shall Company be liable to Customer or to any third party for consequential, incidental or special damages, or for lost profits, resulting from or in any manner related to its services or products, their delivery, non-delivery, design, use, or any inability to use the same, whether such damages be claimed under contract, tort or any other legal theory. Customer understands that the sole and exclusive remedy of Customer, shall be the repair or replacement of any defective product or service pursuant to the warranty provision hereinabove contained. Should the product or service prove so defective, however, as to preclude the remedying of warranty defects by replacement, Customer's sole and exclusive remedy and Company's sole and exclusive liability shall be a credit in favor of Customer in an amount not to exceed the purchase price of the products and services upon Customer's return of any products of Company. This limitation of liability shall survive the termination, expiration or cancellation of this contract.
5. MISCELLANEOUS. Customer and the Company agree that this transaction herein shall be determined and construed in accordance with, and shall be governed by, the laws of the State of Ohio. Further, Customer and Company agree to submit to the jurisdiction of the appropriate local, state or federal courts within Stark County, Ohio for purposes of resolving any dispute or claim arising in connection with said transaction. Nothing in these terms and conditions shall be construed as creating any act or beneficial right in or on behalf of any third party. The failure of either party to insist or enforce in any instance strict performance of any of the terms of this contract or to exercise any rights hereunder conferred, shall not be construed as a waiver or relinquishment to any extent of its right to assert or rely upon such terms or rights on any future occasion.
6. SERVICE CHARGE ON UNPAID BALANCE. A monthly service charge of 1 ½ % per month (18% per annum) will be charged to Customer for any and all accounts which remain due and owing beyond the stated terms of any invoice and/or order with the Company.
7. ATTORNEY FEES AND COLLECTION COSTS. In the event that it is necessary for Company to institute collection and/or legal proceedings against Customer for any outstanding account, Customer agrees to be responsible for any and all collection fees, reasonable attorney fees, court costs, costs associated with filing of mechanic’s liens, in addition to any interest charges, service charges, and the like.
8. MECHANIC’S LIENS. Customer agrees that Company may exercise any and all available remedies available to Company, in addition to those stated above, to ensure payment for services and/or goods hereunder, including Company’s right to file a mechanic’s lien in accordance with Ohio law with respect to any unpaid account and/or invoice. Further, Customer agrees to hold Company harmless and to indemnify it from any claim by any property owner with respect to the filing of any such lien.
9. PHOTO RELEASE. Company is authorized to use Customer’s project in photographs and/or videos in any and all of its publications, including websites, social media, marketing literature, advertising, and the like.