TERMS AND CONDITIONS

1. Applicability. The Estimate referencing or accompanying these Terms and Conditions (“Terms”) or to which these Terms are otherwise incorporated is an offer by J and J Industrial Contracting, Inc. (“J&J”) to the person(s) identified on such Estimate (“Customer”) for the sale of the goods (“Goods”) and/or services (“Services”) described therein and is governed exclusively by these Terms (the Estimate together with these Terms, the “Agreement”). Any of the following acts by Customer shall constitute Customer’s acceptance of the Estimate and these Terms in their entirety: (a) acknowledging the Estimate; (b) issuing a purchase order, release or other similar document for the Goods and/or Services; (c) accepting delivery of the Goods and/or Services; or (d) by any other conduct which fairly recognizes the existence of a contract for the purchase and sale of the Goods and/or Services. Neither the Estimate, any acknowledgement, invoice or other document issued by J&J nor J&J’s performance will constitute acceptance of any terms and conditions attached to or purportedly incorporated into any purchase order or other purchasing document issued by Customer, and any such terms and conditions issued by Customer are specifically excluded and are not incorporated into the parties’ agreement. J&J hereby objects to any additional or different terms proposed by Customer. J&J may withdraw the Estimate upon notice at any time prior to acceptance by Customer.

2. Delivery and Performance Dates; Changes. J&J shall use reasonable efforts to meet the final delivery and/or performance dates specified in the Estimate, provided that any such dates are estimates only and J&J shall not be liable for delays. Without limiting the forgoing, Customer acknowledges that the delivery of ordered materials and other goods, and the scheduling of equipment, personnel, subcontractors, consultants, inspectors, and other third parties is directly tied to (a) the date Customer accepts the Estimate and (b) J&J receiving all necessary Customer, Facilities (as defined below), and other project information. Estimated kickoff, delivery, and performance dates as well as all cost and other pricing assumptions are subject to change and may be impacted by delays in Customer accepting the Estimate or otherwise responding to J&J’s periodic and reasonable requests for information, access, and/or other assistance. Notwithstanding anything contained herein or the Estimate to the contrary, J&J may, from time to time, make reasonable changes to the nature, scope or type of Goods or Services without Customer’s consent provided that such changes do not materially affect the performance of such Goods or Services, or the quoted costs or delivery and performance dates. Any alterations or deviations from the Agreement due to Customer’s requirements or request, or due to unknown or undisclosed conditions, that involve extra costs will be completed on a time and material basis and otherwise invoiced in addition to amounts set forth on the Estimate.

3. Pricing. Prices for Goods and Services are as set forth in the Estimate or, where no price is listed, J&J’s then-current pricing will apply, including with respect to offerings billed on a time and materials basis. Unless otherwise stated, all Goods are delivered EXW J&J’s facility (Incoterms 2020) and all Services are based on straight time hours during J&J’s standard business hours Monday through Friday (four (4) hour minimum applies for all work quoted on time and materials basis). Prices are based on removal of equipment under normal conditions, assumes all flooring, doorways, aisleways, ceilings and other overhangs, and any other structures are adequate for anticipated clearances and loads, do not include specialty construction, safety, hydraulic, dewatering, leveling, anchoring, excavating, rigging, storing, tarping, venting, dust prevention or other equipment, and do not include additional time or materials required due to abnormal footings or soil conditions, underground tanks, lines or other obstructions, or adverse weather conditions, including earthquakes, tornados, hurricanes, tropical cyclones, downbursts or other high winds, hail, blizzards, snowfall, ice storms, dust storms, excessive precipitation, thunderstorms, lightning, wildfires, waterspouts, electrical blackouts, floods, seasonal weight restrictions, or any other similar or dissimilar regional, national or seasonal severe weather conditions or natural disasters outside of J&J’s control. Title and risk of loss shall pass to Customer at delivery. Any and all taxes (excluding those based on J&J’s income) that may be imposed by any taxing authority on fulfilment of the Agreement and for which J&J may be held responsible for collection or payment, either on its own behalf or on behalf of Customer, shall be paid by Customer to J&J upon demand. Customer acknowledges that raw materials, utilities and other input costs are prone to pricing fluctuations beyond J&J’s control. J&J reserves the right to increase prices following written notice in the event J&J incurs increases in its raw material, labor or other costs after the Estimate date.

4. Payment and Invoicing. Unless otherwise stated in the Estimate, payment shall be made net thirty (30) days from the date of delivery or performance, invoiced from time to time (or at J&J’s option, monthly in arrears), in United States Dollars via electronic funds transfer, with no discount for earlier payment. Notwithstanding the foregoing, for Estimates involving aggregate Goods and Services of $50,000 or greater, Customer shall be invoiced as follows: (a) 25% upon acceptance/purchase order issuance; (b) 50% upon completion of 50% of the quoted project, phase or other milestone (as determined by J&J); (c) 25% upon completion (as determined by J&J). Notwithstanding anything contained herein to the contrary, J&J may require advance payment or collateral from Customer of all or any portion of the quoted amount(s), including for specialty materials, equipment or third-party engagements or, if at any time, J&J has reasonable doubt as to Customer’s credit worthiness, determines there is or may be a substantial risk of J&J’s claim to payment due to declining business operations or assets of Customer, or in the event that Customer is in arrears with respect to any payment owed J&J. If Customer becomes delinquent in payment, J&J shall have the right, in addition to any other right it may have, to terminate all or any part of the Agreement, cancel any specific Customer order or project in whole or in part, recall, suspend or otherwise withhold further performance or deliveries, and declare all unpaid outstanding amounts immediately due and payable. All amounts past due may be, in J&J’s discretion, subject to an interest charge of 1.5% per month or the maximum rate permitted under applicable law. Customer shall reimburse J&J for all costs incurred in collecting any late payments or otherwise enforcing its collection rights and security interests under the Agreement, including attorneys’ fees. To secure payment of the amounts payable to J&J in connection with the Agreement and performance of all of Customer’s obligations thereunder, Customer hereby: (i) grants to J&J a security interest in all Goods and/or Services; and (ii) authorizes J&J to file such lien filings, financing statements and other security instruments and related documents, and agrees to execute such other documents and to do such other acts, as J&J may reasonably deem necessary or advisable to protect its rights in connection with the Agreement. In the event Customer breaches the Agreement, J&J shall have all the rights and remedies of a contractor, subcontractor, supplier, laborer or secured creditor, as applicable, including under the Michigan Construction Lien Act and Michigan Uniform Commercial Code (or similar laws). J&J is hereby granted a power of attorney on behalf of Customer to execute all appropriate documents (including financing statements, notices of interest or similar filings) to perfect and record such security interests. Any default by Customer or its affiliate(s) under any other agreement with J&J (including for late or non-payment) shall be deemed a default under the Agreement, entitling J&J to all remedies available to it under the Agreement and at law or in equity.

5. Invoice Dispute; Setoff. Customer shall notify J&J in writing of any good faith dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the date of such invoice. Customer will be deemed to have accepted all invoices for which J&J does not receive timely notification of dispute, and shall pay all undisputed amounts due under such invoices within the period set forth herein. The parties shall seek to resolve any invoicing disputes expeditiously and in good faith. Notwithstanding anything to the contrary, Customer shall continue performing its obligations under the Agreement during any such dispute, including Customer’s obligation to pay all due and undisputed invoice amounts in accordance herewith. Customer acknowledges and agrees that it may not set off or otherwise debit against or recoup from any amounts due or to become due to J&J, any amounts due or become due to Customer, unless and until J&J expressly agrees in a signed writing to such setoff, debit or recoupment, and shall not exercise any right of setoff, debit or recoupment in connection with any disputed, contingent, or unliquidated claim. In the event Customer fails to the comply with the foregoing and improperly sets off, debits or recoups from amounts due or to become due to J&J, J&J shall be entitled, in addition to all of its other rights hereunder or otherwise, to suspend performance of its obligations hereunder, until Customer reverses such improper setoff, debit and/or recoupment.

6. Customer Responsibilities. Unless and solely to the extent expressly set forth in the Estimate, Customer shall be at all times responsible for the following: (a) taking all reasonable and necessary safety and other precautions to protect property and persons from damage, injury or illness in and around all areas where J&J will or may operate or have a need to access (“Facilities”); (b) maintaining all Facilities in a neat, clean and safe condition, free of hazards, debris and rubbish not directly caused by J&J; (c) maintaining adequate insurance coverages with reputable carries, including for commercial general liability, property and for any non-standard machinery or machinery that, by its nature, requires additional insurance; (d) all interconnections and removal of all fluids from machinery and equipment, including oils, chemicals, coolants, etc.; (e) timely reporting to J&J in writing all known conditions that do or may affect the Facilities or J&J’s performance under the Agreement, including the existence of any potentially hazardous substances, materials or products (e.g., asbestos, radon gas, formaldehyde, lead-based paint, fuel or chemical storage tanks, contaminated soil on property, and other airborne pathogens, etc.); (f) determining requirements for, and paying all costs incurred in connection with, any engineering services, certifications, permits or similar authorizations, approvals or licensures, including from federal, state or local authorities or landlords; (g) any energy or other code requirements not explicitly stated on prints made available to J&J at the time of Estimate; and (h) any other information, actions or items reasonably requested of Customer by J&J from time to time.

7. Limited Warranty. J&J warrants to Customer that: (a), at delivery, Goods will materially conform to published specifications in effect as of the date of delivery and will meet, in all material respects, applicable known code requirements as of the Estimate date; and (b) Services will be performed using personnel of required skill, experience, and qualifications, and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. In the event that the Goods or Services, or portion thereof, are non-conforming, as determined by J&J, J&J’s sole liability to Customer and Customer’s sole remedy under the foregoing warranties is limited to the replacement or re-performance thereof of only the equivalent portion of non-conforming Goods or Services; provided, however, that written notice that the Goods or Services are potentially non-conforming must be given by Customer to J&J within five (5) days after delivery or performance or, if Customer’s detailed inspection of the Goods or Services could not have uncovered the potential non-conformance, within twenty-one (21) days after Customer knew or reasonably should have known that the Goods or Services were potentially non-conforming. Failure to timely provide the foregoing notice shall constitute a waiver by Customer of any and all claims that it may have had with respect to such non-conformance.
SPECIFICALLY EXCLUDED FROM THE FOREGOING WARRANTIES ARE THE FOLLOWING, FOR WHICH J&J SHALL HAVE NO LIABILITY WHATSOEVER: (i) damages or defects caused by unauthorized or improper installation, alteration, repair, maintenance (including failure to provide appropriate maintenance), storage, handling, use or operation by Customer or any third party; (ii) damages caused by the failure of Goods or Services to comply with any applicable environmental, land use or other laws, statutes, regulations, rules, ordinances, guidelines, or permitting or other requirements; (iii) damages or defects caused by any underlying, adjoining or adjacent structure, surface, subsurface or foundation or condition, equipment, component, system, or assembly not manufactured or sold by J&J (“Third-Party Component(s)”) and/or the integration, incorporation, interaction, connection, placement, or use of conforming Goods and/or Services in or with any Third-Party Component(s); or (iv) damages or defects attributable to or caused by (A) misuse, neglect, accident, abuse, or vandalism or any transit related damage, (B) acts of God or insurrection, (C) normal wear and tear, or (D) any other acts that are beyond J&J’s reasonable control.

THE WARRANTIES SPECIFIED IN THIS SECTION ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE REMEDIES OF CUSTOMER SHALL BE LIMITED TO THOSE PROVIDED HEREIN TO THE EXCLUSION OF ANY AND ALL OTHER REMEDIES. NO AGREEMENT VARYING OR EXTENDING THE FOREGOING WARRANTIES, REMEDIES OR THIS LIMITATION WILL BE BINDING UPON J&J UNLESS IN WRITING AND SIGNED BY A DULY AUTHORIZED OFFICER OF J&J.

8. Limitation of Liability. IN THE EVENT ANY REMEDY HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE AND MONETARY DAMAGES MAY BE IMPOSED, J&J’S LIABILITY, WHETHER FOUNDED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR RESULTING FROM (a) THE AGREEMENT OR ANY PERFORMANCE OR BREACH THEREOF, (b) THE DESIGN, MANUFACTURE, DELIVERY, RECIEPT, SALE, REPAIR, REPLACEMENT OR USE OF GOODS AND/OR SERVICES, AND/OR (c) THE FURNISHING OF ANY SERVICES, SHALL NOT EXCEED THE TOTAL PRICE OF THE GOODS OR SERVICES AT ISSUE IN THE CLAIM, EXCEPT IN THE CASE OF J&J’S GROSS NEGLIGENCE AND/OR WILLFUL AND INTENTIONAL MISCONDUCT.

IN NO EVENT SHALL J&J BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, OPERATIONS SHUTDOWN OR OTHER BUSINESS INTERRUPTION EXPENSES, DAMAGES TO AND/OR ARISING IN CONNECTION WITH ANY THIRD-PARTY COMPONENT(S), INJURY TO REPUTATION OR LOSS OF CUSTOMERS, RECALL, OR REMOVAL AND/OR REINSTALLATION COSTS.

9. Indemnification. To the fullest extent permitted by law, Customer expressly agrees to indemnify and hold harmless J&J and its equity holders, officers, directors, employees, agents, successors and assigns (“Indemnitees”) and defend the Indemnitees from and against any and all claims, liabilities, lawsuits, losses, costs, expenses or damages (including attorneys’ and other professionals’ fees) of any kind or nature whatsoever, including claims for personal injury (including death) or property damage, whether such claims are premised on contract, tort or otherwise, including strict liability, which arise out of or result from, or are in any way related to the Agreement or J&J’s performance thereunder, except to the extent of J&J’s willful misconduct or gross negligence.

10. Termination. J&J may terminate the Agreement, in whole or in part, as a result of Customer’s: (a) breach, threat to breach and/or repudiation of any representation, warranty, covenant or other term of the Agreement; (b) making an assignment for the benefit of creditors, or proceedings in bankruptcy or insolvency are instituted by or against Customer; (c) request for accommodation from J&J, financial or otherwise, in order to meet its obligations under the Agreement; (d) entering or offering to enter into a transaction that includes a sale of a substantial portion of its assets or a merger, sale or exchange of stock or other equity interests that would result in a change in control within the meaning of the Internal Revenue Code and regulations issued thereunder; or (e) financial or other condition that could, in J&J’s sole judgment, endanger Customer’s ability to perform. Customer may terminate the Agreement only upon a material breach by J&J which remains uncured for sixty (60) days after the date of J&J’s receipt of written notice of such breach from Customer, together with all necessary supporting details concerning such breach, or as otherwise agreed in writing by J&J; provided, however, Customer may not terminate in the event J&J is in good faith working towards curing such breach at the expiration of such sixty (60) day period. If the Agreement is terminated prior to delivery of the Goods or Services for any of the foregoing reasons, in addition to all other rights J&J may have hereunder or other at law or in equity, Customer shall, within thirty (30) days, pay to J&J: (i) the contract price for all finished Goods purchased or produced, and all Services performed (in whole or in part), prior to termination; (ii) the cost of all work in process, as reasonably determined by J&J; (iii) the cost of all raw materials and components purchased or equipment purchased or rented, or third-parties engaged, by J&J in connection with the Agreement, as reasonably determined by J&J; (iv) all other costs incurred by J&J prior to termination directly connected with the Goods or Services to be provided under the Agreement, as reasonably determined by J&J; and (v) J&J’s costs for settling claims or disputes with its subcontractors in connection with component parts, raw materials, equipment or services related to J&J’s provision of the Goods or Services. In addition to the foregoing, J&J may terminate the Agreement, in whole or in part, for convenience upon twenty (20) days prior written notice to Customer.

11. Confidentiality. Any and all information, in whatever form transmitted, and items embodying information (including photographs, samples, models, prototypes) disclosed by or on behalf of J&J to Customer or to which Customer is exposed, including methods, procedures, processes, technologies, know-how, trade secrets, ideas, inventions, drawings, specifications, product data, designs, business plans, marketing plans, business operation information, financial information, pricing information, strategies, and any representations, compilations, analysis, and summaries of the foregoing (“Confidential Information”) shall be held by Customer in strict confidence and used solely for the purpose of doing business with J&J. Customer shall restrict access to and limit disclosure of J&J’s Confidential Information to only those of Customer’s employees, directors, managers, officers, and advisors with a need to know the information, provided that they have been instructed and are bound in writing not to disclose the Confidential Information or use it for any purpose other than as permitted hereunder and that Customer shall at all times be fully liable to J&J for any breach hereof by such persons (as if such persons were party hereto). Customer shall not disclose or transfer any of J&J’s Confidential Information, either directly or indirectly, to any other person or entity without the written consent of J&J.

12. Non-Solicitation. During the term of the Agreement and for a period of twelve (12) months after the expiration or termination thereof, Customer will not without J&J’s prior written consent, directly or indirectly, encourage, solicit, induce or attempt to encourage, solicit or induce any employee of J&J engaged in performing under the Agreement to leave or alter their employment with J&J, except (a) pursuant to a general solicitation through the media that is not directed specifically to any employees of J&J, unless such solicitation is undertaken as a means to circumvent the restrictions contained in or conceal a violation of this Section or (b) if J&J terminated the employment of such employee before Customer solicited or otherwise contacted such employee and Customer knew of such separation as shown by its records.

13. Excusable Delay. J&J shall not be liable for any failure to perform or delay in performance when due to delays caused by acts of God, compliance in good faith with any applicable foreign or domestic government regulation or order, fires, floods, windstorms, other natural disasters, epidemic, pandemic or similar health crises, riots, wars, labor disputes (including strikes or lockouts), inability to obtain power or other utilities, components, materials, transportation, or equipment or any other cause beyond the reasonable control of J&J.

14. Assignment. Customer may not assign the Agreement, in whole or in part, without the prior written consent of J&J. Any attempted assignment or subcontracting by Customer without such consent shall be ineffective and will not relieve Customer of its duties or obligations hereunder. Any material change of ownership or control of Customer will be deemed an assignment for all purposes hereunder. In the event of a proper assignment, the Agreement shall be binding upon and inure to the benefit of Customer’s successors and assigns. J&J may subcontract all or any part of its obligations under the Agreement without notice, provided J&J shall at all times remain liable for the performance of such subcontractors.

15. Relationship of the Parties. Customer and J&J are independent contractors, and nothing contained herein makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or create any obligation on behalf of the other party.

16. Governing Law, Jurisdiction, Fees and Statute of Limitations. The validity, interpretation and enforcement of the Agreement, matters arising out of or related to thereto or its making, performance or breach, and any and all related matters shall be governed by the laws of the state of Michigan. The provisions of the United Nations Convention on Contracts for the International Sale of Goods, and any conflict-of-laws provisions that would require application of another choice of law, are excluded. The parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the applicable state and federal courts of the state of Michigan, county of Oakland. Customer shall pay J&J’s attorneys’ fees incurred in enforcing any provision of the Agreement. Any legal action arising out of or related to the Agreement, whether alleging breach of warranty or other breach, default or tortious act by J&J, must be brought by Customer, or any other person making a claim, within two (2) years after the date of the receipt of the Goods or performance of the Services sold herein, or one (1) year after Customer or such person could reasonably have discovered the basis for the action, whichever comes first.

17. Waiver. No waiver shall be effective unless it is in writing. The failure of J&J to require performance under any provision of the Agreement shall in no way affect J&J’s right to require full performance at any subsequent time, nor shall the waiver by J&J of a breach of any of such terms and conditions constitute a waiver of any other breach of the same or any other term.

18. Severability; Survival. If one or more provisions of the Agreement should be or become invalid or unenforceable, the remaining provisions shall remain in full force and effect, and the parties shall substitute the invalid or unenforceable provision with a valid provision that, as closely as possible, achieves the same business purpose as the invalid or unenforceable provision. These Terms shall survive and continue in full force and effect following the expiration, cancellation or termination of the Agreement.

19. Entire Agreement; Headings. The Agreement contains the entire understanding of the parties and is intended as a final expression of their agreement and a complete statement of the terms thereof, and may not be amended, modified or otherwise supplemented unless any such amendment, modification, or supplementation is done in writing and signed by authorized representatives of each party (for J&J, such authorized representative (or authorized agent) being limited to J&J’s President, Vice President or COO); provided, however, that notwithstanding the foregoing, the parties hereby acknowledge and agree that J&J may modify these Terms from time to time by posting revisions to J&J’s website at https://www.jandjindustrialcontracting.com/ (or any successor thereto), and such modified Terms shall apply to any revised Estimates or additional or changed Goods or Services. For purposes of the Agreement, the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”, the word “or” is not exclusive, the words “herein,” “hereby,” “hereto,” and “hereunder” refer to the Agreement as a whole. Section headings are provided for the sake of convenient reference only and are entirely without substantive effect.

REV: December 2022