Terms and Conditions
General terms. These general terms and conditions of sale (these “Terms”) are the only terms that govern the sale and provision of exterior and interior painting, sheetrock repair, wallpaper removal, fence staining and painting, concrete staining, and seamless gutter services (the “Services”) by Dixon Painting, Inc. (“Dixon Painting”) to a purchaser of Dixon Painting’s Services (the “Customer”). These terms also govern any goods (e.g. gutters) sold by Dixon Painting (the “Goods”) in relation to the Services.
Priority. These Terms and Dixon Painting’s quotation or estimate, Proposal (defined below), and invoice (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
Change of Services. Notwithstanding anything to the contrary contained in this Agreement, Dixon Painting may, from time to time change the Services without the consent of Customer, provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the quotation. Dixon Painting may appoint sub-agents or subcontractors or other persons to act on its behalf or perform any of its obligations under this Agreement.
Goods & Services
Services. Dixon Painting shall provide to Customer the Services as described in Dixon Painting’s standard proposal (the “Proposal”) in accordance with this Agreement. The term “Proposal” shall also include any standard estimate provided by Dixon Painting.
Goods. With respect to any Goods sold by Dixon Painting, if any, Dixon Painting shall provide to Customer the Goods as described in the Proposal in accordance with this Agreement.
Customer’s Acts or Omissions. If Dixon Painting’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Dixon Painting will not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
Accommodation of Services. With respect to the Services, Customer will (a) cooperate with Dixon Painting in all matters relating to the Services and provide such access to Customer’s premises, and such other facilities (including reasonable access to restrooms) as may reasonably be requested by Dixon Painting, for the purposes of performing the Services; (b) keep any pets and small children away from the area where Dixon Painting is performing the Services (c) respond promptly to any Dixon Painting request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Dixon Painting to perform Services in accordance with the requirements of this Agreement; (d) provide such customer materials or information as Dixon Painting may reasonably request and ensure that such customer materials or information are complete and accurate in all material respects; (e) remove fixtures and other valuable items from the area where Dixon Painting is performing the Services; and (f) comply with any other requirements set forth in any documentation and guidelines provided to Customer by Dixon Painting prior to performance the Services.
Recommendations. As part of this Agreement (and subject to the warranty provisions in Section 7) Dixon Painting may provide recommendations and advice to Customer concerning the type of services needed, the preferred location of the Services within the Customer’s premises, and other matters related to the Services. In giving such recommendations and advice, Dixon Painting relies on Customer’s accurate representations concerning the Customer’s facilities and operations. Customer further acknowledges that, even in the absence of any defects, the performance of the Services may vary based on external factors outside of Dixon Painting’s knowledge or control, including, without limitation, Customer’s use of premises. Dixon Painting will not be responsible for any loss or any defect in the performance of the Services that resulted from Customer’s inaccurate information or from external factors outside of Dixon Painting’s control.
Performance Dates. Dixon Painting shall use reasonable efforts to meeting any performance or completion dates, if any, specified in the Proposal. Customer understands and agrees that any performances or completion dates will be estimates only and that Dixon Painting shall not be liable and shall not be in breach of the Agreement for any failure to meeting any estimated performance or completion dates.
Price. Customer will purchase the Services from Dixon Painting at the price set forth in Dixon Painting’s quotation, Proposal, and/or invoice (the “Price”).
Taxes. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer will be responsible for all such charges, costs, and taxes. Customer will not be responsible for any taxes imposed on Dixon Painting’s income, revenues, gross receipts, personnel, real or personal property, or other assets.
Down Payment. Customer shall, in advance, pay a down payment (“Down Payment”) equal to fifty percent (50%) of the total Price for the Services and/or Goods. Customer may make payment of the Down Payment by cash, check, or credit card. Customer may pay the Down Payment on the day that Dixon Painting arrives to Customer’s location to provide the Services and/or Goods, but prior to Dixon Painting’s provision of the Services or Goods. The remainder of the Price shall be paid in accordance with Section 4.2 below.
Payment Terms. Dixon Painting shall provide Customer an invoice upon completion of the Services. Customer will pay Dixon Painting the Price (or the remainder of the Price) for the Services and/or Goods upon receipt of Dixon Painting’s invoice. Customer will pay any late fees, in accordance with Section 4.3 below, if Customer fails to provide payment within fifteen (15) days of Customer’s receipt of an invoice.
Interest. Customer will pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer will reimburse Dixon Painting for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Dixon Painting does not waive by the exercise of any rights hereunder), Dixon Painting will be entitled to suspend the performance of any additional Services if Customer fails to pay any amounts when due hereunder.
Disputes. Customer will notify Dixon Painting in writing or by email immediately upon receipt of an invoice if Customer disputes any entry on that invoice or the amount invoiced. In the absence of any such written objections, Customer will be deemed to have accepted and acknowledged the invoice as correct.
No Withholding. Customer will not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Dixon Painting, whether relating to Dixon Painting’s breach, bankruptcy or otherwise. Retainage of any kind is unacceptable.
Inspection and Rejection of Nonconforming Goods
With respect to any Goods sold to Customer, Customer will inspect the Goods within 3 days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Goods unless it notifies Dixon Painting in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Dixon Painting. “Nonconforming Goods” means that the product shipped is different than identified in Customer’s purchase order.
If Customer timely notifies Dixon Painting of any Nonconforming Goods, Dixon Painting will, in its sole discretion, (a) replace such Nonconforming Goods with conforming Goods, or (b) credit or refund the Price for such Nonconforming Goods. If Dixon Painting exercises its option to replace Nonconforming Goods, Dixon Painting will, after receiving Customer’s shipment of Nonconforming Goods, ship to Customer, at Customer’s expense and risk of loss, the replaced Goods to the Customer’s location.
Customer acknowledges and agrees that the remedies set forth in Section 5.2 are Customer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 5.2, all sales of Goods to Customer are made on a one-way basis and Customer has no right to return Goods purchased under this Agreement to Dixon Painting.
Customer may request Dixon Painting to perform services or provide materials which are not set forth in the Proposal. Dixon Painting agrees to perform such additional work so long as prior to the performance of such additional work, Customer shall authorize (verbally or in writing) the scope of such additional work and compensation payable to Dixon Painting for the full performance of said additional work. Any additional work performed pursuant to a change order, whether approved by Customer in writing or verbally, is performed at Customer’s sole risk and expense. Customer expressly acknowledges and agrees that verbal acceptance of any change orders shall be binding upon the Customer. Dixon Painting may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the Proposal. If Customer is dissatisfied with the color of any paint after Dixon Painting has partially or fully painted Customer’s property or premises, then any request to change the paint color will be considered a change order and Customer shall solely be responsible for any and all costs and expenses incurred in repainting the property or premises, including the full cost of purchasing additional or replacement paint and additional labor. In such an event, the Customer shall, in Dixon Painting’s discretion, remain obligated to pay for any paint already purchased by Dixon Painting on behalf of the Customer or to provide the Services, in addition to any new, additional or replacement paint. Any additional services or equipment not specifically set forth herein shall be at Customer’s additional expense.
Services. Dixon Painting warrants that it shall perform the Services 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 and will devote adequate resources to meet its obligations under this Agreement.
Painting. Dixon Painting may make certain additional limited warranties with respect to painting Services provided by Dixon Painting in accordance with a separate consumer warranty agreement or document (the “Dixon Painting Warranty”).
Siding & Gutters. With respect to siding and gutter products and Services related to such products, Dixon Painting warrants labor (installation) and materials for a period of two (2) years. This warranty shall not cover: abnormal use or misuse; installation or repair by any third party or anyone other than Dixon Painting; warping or distortion due to exposure to excessive heat; any lack of compatibility between the materials provided by Dixon Painting and any third party product not provided, sold or installed by Dixon Painting; color variance or color changes and fading; damaged caused by, among other things, weathering, oxidation, mold, mildew, settling of the building, failure of the structure (including foundations and walls), use of incompatible accessories, fire, flood, lighting, ice, wind-borne objections, earthquake, hurricane, sun, cyclone, gale, tornado, weather of catastrophic nature, acts of Gods, intentional acts, unreasonable use, misuse, physical abuse, vandalism, riot, insurrection or civil disorder, accidents or corrosive atmospheres (such as those contaminated by acid raid, harmful chemicals or vapors). Customer may also obtain or be provided with additional third party manufacturer’s warranties with respect to any gutter and siding products.
Limitations. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 7.1, DIXON PAINTING MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY, (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (C) WARRANTY OF TITLE, OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Third-Party Products. DIXON PAINTING MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY, (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Breach of Warranties Notice Requirement. Dixon Painting shall not be liable for a breach of the warranty set forth in Section 7.1 unless Customer gives written notice of the defective Services or Goods, reasonably described, to Dixon Painting within five (5) days of the time when Customer discovers or ought to have discovered that the Services or Goods were defective.
Remedies. Subject to Section 7.4, Dixon Painting shall in its sole discretion either: (i) repair or re-perform defective Services or Goods (or the defective part); or (ii) within 30 days credit or refund the price of such Services or Goods at the pro rata contract rate. THE REMEDIES SET FORTH IN THIS SECTION 7.5 SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND DIXON PAINTING’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 7.1.
Limitation of Liability
IN NO EVENT SHALL DIXON PAINTING BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT DIXON PAINTING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL DIXON PAINTING’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO DIXON PAINTING FOR THE SERVICES SOLD HEREUNDER, AS REFLECTED IN DIXON PAINTING’S QUOTATION AND INVOICE, WHICHEVER IS LESS.
To the fullest extent permitted by law, Customer shall indemnify, defend and hold harmless Dixon Painting and its officers, directors, shareholders, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees, the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers) resulting from any claim of a third party or Dixon Painting arising out of or occurring in connection with (a) the Goods or Services purchased from Dixon Painting, (b) Customer’s negligence, willful misconduct or breach of this Agreement, or (c) Customer’s use of the Goods or Services. Customer shall not enter into any settlement without Dixon Painting’s or Indemnified Party’s prior written consent. This indemnification provision shall not apply to claims resulting directly from Dixon Painting’s gross negligence or Dixon Painting’s breach of this Agreement.
Compliance with Law
Customer will comply with all applicable laws, regulations and ordinances. Customer will maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement
Term. The term of this Agreement commences on the date the Customer accepts the Proposal, whether in writing or orally, and continues until completion of the Services (the “Term”).
Termination. Either party may terminate this Agreement with immediate effect upon written notice to other party at any time or for any reason.
Effect of Termination.
The Term’s expiration or earlier termination does not affect any rights or obligations that: (i) are to survive the expiration or earlier termination of this Agreement; and (ii) were incurred by the parties (including payment for any Services already provided up to the point of termination) before the expiration or earlier termination; provided that all indebtedness of Customer to Dixon Painting of any kind is immediately due and payable on the effective date of the Term’s expiration or earlier termination, without further notice to Customer.
Additionally, in the event that Customer terminates this Agreement prior to the completion of the Services, Customer shall pay Dixon Painting for any materials purchased by Dixon on behalf of Customer or to provide the Services to Customer (e.g. paint) and a daily labor fee equal to $300.00 for each painter on site and for each day Services were provided at Customer’s location. By way of example, if Dixon Painting purchased $100.00 worth of paint to complete the Services and provided three (3) painters who provided painting Services for three (3) days prior to Customer’s termination, then the Customer shall pay Dixon Painting $2,800.00 ($100 for paint + [$300 multiplied by 3 painters multiplied by 3 days of service]).
All non-public, confidential or proprietary information of Dixon Painting, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Dixon Painting to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement, and may not be disclosed or copied unless authorized in advance by Dixon Painting in writing. Upon Dixon Painting’s request, Customer will promptly return all documents and other materials received from Dixon Painting. Dixon Painting will be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
The Customer hereby irrevocably consents to any and all uses and displays, by Dixon Painting and its agents, representatives and licensees, of the Services performed by Dixon Painting for Customer in connection with any pictures, photographs, audio and video recordings, digital images, websites, television programs and advertising, other advertising and publicity, sales and marketing brochures, books, magazines, other publications, CDs, DVDs, tapes and all other printed and electronic forms and media throughout the world, at any time during or after the term of this Agreement, for all legitimate commercial and business purposes of Dixon Painting (“Permitted Uses”) without further consent from or royalty, payment or other compensation to the Customer. The Customer hereby forever waives and releases Dixon Painting and its directors, officers, employees and agents from any and all claims, actions, damages, losses, costs, expenses and liability of any kind, arising under any legal or equitable theory whatsoever at any time during or after the term of this Agreement by Dixon Painting, arising directly or indirectly from Dixon Painting’s and its agents’, representatives’ and licensees’ exercise of their rights in connection with any Permitted Uses.
Dixon Painting will not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Dixon Painting including, without limitation, acts of God, inclement weather, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage.
In the event that at any time Customer is in default under any terms of any order arising out of this Agreement or any other order, Dixon Painting reserves the right to suspend performance of the Services and to cancel and terminate any or all orders and to hold Customer liable for any damages and expenses incurred by Dixon Painting. Dixon Painting also reserves the right to declare all charges and accounts to be immediately due and payable.
Assignment. Customer will not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Dixon Painting. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement. Dixon Painting may freely assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Customer.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement may be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party has authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under these Terms.
Choice of law; Jurisdiction. This contract and all claims relating to or arising out of this contract shall be governed in accordance with the laws of the U.S. state of Georgia, excluding that state’s choice-of-law principles. All disputes arising out of or in connection with this Agreement will be brought in the courts of Cobb County, Georgia or the U.S. District Court for the Northern District of Georgia, and the Parties consent to the jurisdiction of such courts.
Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the face of the quotation, purchase order, Proposal, or to such other address that may be designated by the receiving party in writing. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), verified email (with confirmation of transmission), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Survival. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Limited Warranty, Limitation of Liability, Indemnification, Relationship of the Parties, No Third-Party Beneficiaries, Notices, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction, and Survival.
Amendment and Waiver. This Agreement may not be modified except in a writing signed by both Parties. No waiver by either Party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by the waiving Party. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Counterparts. This Agreement may be signed or accepted in counterparts (including via Customer’s email confirmation) and all counterparts so executed shall constitute one contract, binding on all the parties hereto, even though all parties are not signatory to the same counterpart.
Clerical Errors. Dixon Painting reserves the right to unilaterally correct clerical, arithmetical, or stenographic errors or omissions in quotations, order acknowledgements, invoices, or other documents.