Elkay Interior Systems, Inc. Terms & Conditions

SECTION II: TERMS OF AGREEMENT FOR PROJECT SERVICES

1. NOTICE OF LIEN RIGHTS: As required by the Construction Lien Law, EIS hereby notifies Customer that persons or companies furnishing labor or materials for the construction on Customer’s land may have lien rights on Customer’s land and buildings if not paid. Those entitled to lien rights, in addition to EIS are those who contract directly with Customer or those who give the owner notice within sixty days after they first furnish labor and materials for construction.

2. INSURANCE

A. Workers Compensation and Employer’s Liability Insurance as required by applicable laws.

B. Commercial General Liability Insurance with limits not less than

1. $5,000,000 for each occurrence (the combined single limit for bodily injury and property damage)

2. $1,000,000 personal liability

3. $1,000,000 Aggregate for Products Complete Operations

4. $1,000,000 General Aggregate

5. $100,000 Fire Damage (any one fire)

C. Automobile Liability Insurance (bodily injury and property damage), including coverage for owned, hired, and non-owned automobiles used during installations. The limits for liability shall not be less than $1,000,000 combined single limit for each accident.

D. Customer shall carry insurance as noted:

1. Customer shall carry builder’s risk.

2. Customer shall carry property insurance for the building and site

3. CUSTOMER OBLIGATIONS, GENERAL TERMS AND CONDITIONS

A. EIS shall have no responsibility for any third-party contractor or consultant (including, for example, but not by way of limitation, engineers and architects) services not provided pursuant to this Contract for Product and will coordinate the services of Customer’s other contractors and consultants only if such coordination is expressly undertaken pursuant to other sections of this Contract for Product. EIS, will not be responsible for construction means, methods, techniques, sequences or procedures, including without limitation for the timeliness or quality of contractor or consultant performance or for the acts or omissions of any contractors or consultants or any other person performing any of the work on the Project, or for the failure of any of them to perform work in accordance with the final plans.

B. EIS is not a licensed architect or engineering firm. It is the customer’s obligation to satisfy all municipal, state, and federal code requirements, including but not limited to drawing or stamped drawing submissions or structural load calculations. Customer shall be responsible for obtaining all permits and paying for all costs associated with the obtaining of those permits.

C. Customer shall promptly respond to EIS’s questions and requests for information and approval and make all finish material and equipment selections in a timely manner and within such time as shall permit EIS to satisfy its obligations hereunder. Any delay or increased cost resulting from Customer’s delay in providing information to EIS shall be borne by Customer.

D. Customer is responsible for notifying EIS of any changes that occur to the original architectural drawings or on-site during the construction progress. EIS may contact the Customer’s General Contractor to seek field dimensions to ensure coordination and fit up with final building dimensions. Failure to provide the dimensions shall not release Customer from possible additional charges should the existing space be constructed differently from the drawings provided to EIS. Any changes to manufactured product will be billed to Customer.

E. EIS shall not enforce or otherwise be responsible for warranties provided by the Project’s contractors, consultants, material suppliers, or equipment suppliers.

F. Customer shall provide EIS and its agents with access to Project space as requested by EIS to inspect existing conditions. Customer shall provide access to completed Project space for purposes of photographically recording the completed design and product in place for EIS’s project records and commercially reasonable business representation.

4. DESIGN SERVICE, TERMS, AND CONDITIONS:

A. Customer shall be responsible for budget and final costs of the Project. During the design process, should the scope of work, specification, quantity or quality of products, or any other terms be modified or altered, this Quote shall be altered by a change order (which may be done through email communication) to reflect the change in design and product order, if applicable, and any associated changes to price and/or delivery price, as determined by EIS. Change orders require the written agreement of both parties, which may be done through email confirmation and may affect Project and Product cost and timing. The Product is separate from the cost of the Project as installed, which is subject to a separate charge.

B. Customer shall provide current and accurate architectural drawings in AutoCAD format for all new construction, rebuild, or remodel projects. EIS plan sets will be developed based on the building footprint and elevations provided in the architectural drawings. EIS shall rely on such architectural drawings in the performance of its services hereunder.

C. EIS plan sets are based on architectural drawings, and Customer shall notify EIS of any deviations due to code requirements, building conditions, subcontractor coordination, or any other changes driven by third-party contractors or consultants.

D. Customer may not use the drawings, schedules, specifications, or other instruments of service provided hereunder for any project other than the Project or for any other purpose. EIS (or, as appropriate, its subcontractor) is the author and Customer of all drawings, schedules, specifications, and other instruments of service provided hereunder and retains all statutory and common law copyrights and intellectual property, proprietary or other rights. Upon termination of this Contract for Product by EIS due to the Customer’s breach, Customer shall no longer have the right to reproduce or use drawings, schedules, specifications, and other instruments of service or copies thereof. Customer may not disclose to any third party such drawings, schedules, specifications, and other instruments of service, except as expressly provided herein and with respect to the Project. EIS's written permission must be obtained prior to using such drawings, schedules, specifications, and other instruments of service or copies thereof for future additions or alterations to the Project.

E. If Customer, without EIS approval, modifies the drawings, schedules, and/or specifications, EIS is not responsible for any loss, cost, or damage relating to the use or application thereof.

F. All computer files containing conceptual imagery, illustrations, and all images within the contract documents in the form of artwork or other graphic design or copyrighted and remain the intellectual property of EIS. All rights reserved.

5. EIS-CERTIFIED INSTALLATION TERMS AND CONDITIONS:

A. If EIS Certified Installation has been purchased, Customer shall accompany an EIS representative on Project completion walk-through to identify shipping damage, missing product or any incomplete work.

B. The installation price is based on non-union labor. If union labor or prevailing wage requirements are imposed, the difference between quoted non-union scales and the union scales shall be the responsibility of Customer.

C. Installation price assumes standard working days and hours, defined as Monday-Friday, from 6:00 AM – 6:00 PM in the time zone that the work is conducted. If work is required outside of standard work times, EIS reserves the right to re-price at an increased rate.

D. All EIS installations shall be warrantied against defects in workmanship for a period of one year from the date of substantial completion. Warranty of installation workmanship will be nullified when contractors other than EIS perform the installation.

SECTION III: LIMITED WARRANTY

1. GENERAL WARRANTY STATEMENT

A. EIS warrants the products sold will be free from defects in material and workmanship under normal use and conditions for the time periods stated below from the date of receipt for, subject to the terms contained herein.

B. Warranty period begins from the point of delivery to the Owner through the stated period above as determined by product type. See table below. No extensions will be made for customer storage before use.

C. Except for the express warranties set forth herein, neither EIS nor the manufacturer makes no representations or warranties, express or implied, under this agreement or under the law, by statute or otherwise, and EIS and the manufacturer specifically disclaim any other warranties, whether written or oral, express or implied, including any warranty of quality, merchantability or fitness for a particular purpose or non-infringement

2. CLARIFICATIONS AND TERMS OF WARRANTY EXCLUSION

A. Warranty excludes defect caused by abuse, alterations to the product not executed by EIS, improper or insufficient maintenance, exposure to extreme climate conditions, improper use or operation or normal wear and tear.

B. EIS product line is intended for indoor environments, unless expressed otherwise in the product specifications. Product shall be stored and/or used in an environment that is watertight, free of debris and temperature/humidity controlled. Any damage caused by exposure to the elements or non-typical conditions shall not be covered under warranty. Non-typical conditions shall include product that may be indoors, but exposed to ultra-violet rays or climate conditions with high salt-air content. This language shall prevail, even where EIS is apprised of the final destination of order.

C. Where Customer-specified product is used, all manufacturer warranties shall supersede EIS warranty statements

D. Warranty does not cover damage resulting from the failure of a third-party’s specification

E. The cost of field repairs performed by non-EIS personnel, agents or representatives will not be reimbursed unless expressly authorized in writing by EIS prior to the repair.

F. Warranty applies to the original consignee only

G. Component pieces, or non-finished goods, such as chair glides, table glides, castors, hinges, upholstered seats and other parts subject to normal wear have no warranty coverage. Please contact Customer Service at 800-837-8373 or cs@elkayinteriorsystems.com for a quote on replacement parts.

3. CLAIM SUBMISSION AND OBLIGATIONS:

A. The EIS warranty comes with dedicated attention from sales, project management, and customer service. Customer service and claim support are available at 800-837-8373 or cs@elkayinteriorsystems.com. To expedite your claim, please have the location information (City, state, and Site ID) and photos of product failure readily available.

B. If an item shows any sign of structural fatigue, it should be taken out of service immediately and EIS notified. Continued use of the product is at Customer’s risk and EIS Warranty will no longer be valid.

C. In the event of a warranty claim, EIS shall have the option in its sole discretion to either (1) replace the product, (2) repair product or (3) refund the purchase price of the product.  Customer may be asked to returned product prepaid as directed to inspect defective item at our facility in order to establish cause.  The replacement or repaired product is warranted for the remainder of the original warranty period. Replacement product value will be assessed based on amount of time product is in service. Elkay reserves the right to assign value/credit based on the remaining life of the warranty at the time of claim submission.

ADDENDUM I

1. Prices for products are set forth on proposal provided.  Customer shall pay or reimburse EIS on demand for all taxes, tariffs, duties, fees and costs imposed on, in connection with, subject to, or measured by any transaction by EIS and Customer hereunder (as solely determined by EIS), in addition to the prices or fees described herein.

2. Customer acknowledges that EIS’s estimates of probable construction cost concerning the Project will be based solely upon EIS’s informed judgment and without the benefit of substantial or detailed cost estimating efforts and agrees that it shall not rely on such estimates, which may be modified based on additional information received b EI concerning the Project.

3. This Contract for Product supersedes all negotiations and prior agreements concerning the Project and is intended as a complete and exclusive statement of the entire agreement between Customer and EIS concerning the Project.  This Contract for Product shall be binding upon and to the benefit of the parties hereto and their respective successors and assigns.  This Contract for Product may not be assigned (except to an affiliate) by Customer without the prior written consent of EIS. EIS shall have the right to appoint subcontractors to fulfill its obligations hereunder.

4. EIS shall invoice Customer for installation charges upon substantial completion of installation of product for the Project. Customer shall pay such invoices upon receipt of the invoice.

5. If Customer does not pay EIS any amount when due, or if Customer defaults in performance of any of its obligations or covenants hereunder, EIS may, without incurring liability to Customer and without prejudice to EIS's other lawful remedies (1) terminate EIS's obligations hereunder, (2) declare immediately due and payable all of Customer’s obligations to EIS, (3) change credit terms with respect to any further work, (4) suspend or discontinue any further work and/or (5) eliminate or disregard any pricing concessions or discounts provided to Customer hereunder. In addition, EIS may exercise any of the aforementioned remedies with respect to any outstanding Contract for Product between EIS and Customer in the event Customer fails to pay any amount when due hereunder or defaults in the performance of any of its obligations or covenants hereunder.

6. Customer agrees to reimburse EIS for all costs and fees including, but not limited to, attorneys' fees, incurred by EIS and collecting sums owed by Customer.  Customer agrees to pay a late payment charge of the lesser of 1.5% per month, or the maximum amount allowable by law, on all amounts not paid in full when due, payable on EIS's demand. Customer shall not set off amounts due to EIS against claims Customer may have against EIS.

7. If this Contract for Product is terminated for any reason other than due to EIS's material, uncured breach, then Customer shall pay to EIS the Product purchase price, installation services, work-in-process and other costs incurred and due hereunder up through the date of termination, as well as expenses incurred by EIS in connection with the termination, including but not limited to cancellation fees payable to subcontractors or vendors, payable immediately upon receipt of invoice.  Termination by either party shall require a 14-day written notice.

8. EIS shall not be in breach of this Quote to the extent that any delay or failure in its performance of its obligations under this Quote results from any cause beyond its reasonable control, such as acts of God, changes in law or imposition of executive orders that significantly impact the services and products provided hereunder, acts of civil or military authority, embargoes, pandemics, epidemics, war, riots, insurrections, fires, explosions, earthquakes, floods, unusually severe weather conditions, labor problems or unavailability of parts.  In the event of any such excused delay, the time for performance shall be extended for a period equal to the time lost by reason of the delay.

9. Prevailing party fee clause: The parties also agree that the prevailing party shall be entitled to attorneys' fees and costs for prosecuting or defending any claims arising out of the breach of this Agreement.

10. This Quote, its exhibits and any other related agreement between the parties hereto shall be governed by Wisconsin law without regard to its conflict of law principles.

11. Any disputes, claims or controversies arising under or relating to this Contract for Product shall be determined by binding arbitration.  The arbitration shall be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules.  The arbitration shall take place in Milwaukee, Wisconsin.  Judgment on any award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction.

12. In the event a portion of this Contract for Product is declared invalid by court of competent jurisdiction, the remaining provisions shall remain in full force and effect, unaffected by such declaration of invalidity.

13. In no event shall either party be liable to the other for any indirect, consequential, incidental, punitive, exemplary, special, including without limitation, damages for lost profits, business interruption, cost of capital, or loss of use of capital under this Quote or any related agreement between the parties, regardless of the legal theory under which such damages are sought, and even if it has been advised of the possibility of such damages.

14. EIS is an independent contractor.  Neither party is authorized to incur obligations or make promises on behalf of the other party.

15. This Quote and any exhibits attached hereto contain the entire agreement of the parties with regard to the matters referenced herein and supersede any prior agreements or statements as to such matters.

Revision Date: 10/03/2023