Maguire Contract Terms & Conditions

Scope and Acceptance of Terms and Conditions. Terms and Conditions of product design, construction, manufacture, installation, maintenance, and service of projects are contained herein. These Terms and Conditions either shall be attached to the Contract between Customer and Contractor for the Work or otherwise made available by Contractor to Customer from time to time via a link within Contractor’s website.  These Terms and Conditions are and shall be deemed to be fully incorporated into each such Contract by reference thereto. Any additional or different terms or conditions in any form delivered by Customer (together with, for purposes of clarity, Customer’s affiliates, agents, employees, officers, and directors) are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given. By accepting delivery of the products, components, or materials, or by engaging Contractor to provide product(s) or perform any construction or other services, Customer agrees to be bound by and accepts these Terms and Conditions. These Terms and Conditions are referred to herein as either “Terms and Conditions” and, together with the Scope of Work and other provisions of each Contract to which they apply, constitute a binding contract between Customer and Contractor. Customer accepts this Contract by engaging Contractor to perform or procure any Work services or product. The person executing this Contract as or on behalf of Customer (i) represents that such person has full and legal authority to execute this Contract for Customer and to legally bind Customer; and (ii) guarantees and agrees to be personally liable for all amounts due Company hereunder if the preceding representation is false when made.

Standard Exclusions.  Customer acknowledges that Contractor has based its bid or quotation herein on representations made by Customer or Customer’s agents or representatives, by its other contractors or by a reasonable prior visual inspection by Contractor (if undertaken). Customer acknowledges that a visual inspection cannot identify all existing construction, service, or maintenance issues. Additionally, existing Customer facilities or equipment has certain areas that are not visible or accessible for Work-related activities.  Contractor will make reasonable efforts to protect or avoid such areas but cannot guaranty it can do so. This Contract and Contractor’s obligations hereunder are further subject to the work schedule and warranty exclusions and limitations set forth below and any and all other exclusions set out in the Contract.  Anything (i) not specifically included in the Scope of Work; and/or (ii) specifically excluded from the Scope of Work, shall be considered to be a Standard Exclusion excluded from the Scope of Work.

Payment Terms and Change Orders. Customer shall pay Contractor according to the terms contained in this Contract. During the progress of the Work, if (i) Contractor identifies unforeseen labor or materials are required due to the condition of Customer’s location or the availability to Contractor or condition of existing Customer facilities, hardware, or equipment, or due to Customer’s inability or failure to timely drain or otherwise make available to Contractor any such existing facilities, hardware, or equipment; (ii) Contractor experiences increases in prevailing wages or any delay attributable to Customer or to any third party (including any governmental agency or authority); or (iii) Customer otherwise desires to order or authorize extra work, product, or materials not specified in the initial Contract, Customer shall issue a written change order (“Change Order”) in a form provided by, or reasonably satisfactory to, Contractor. Contractor may consider such Change Order a contract separate and aside from this Contract and may require payment for the Change Order in advance. If the Contract provides for annual or other periodic payments, whether as installments or for multiyear or similar services arrangements, Customer acknowledges and agrees that some or all of the periodic payment amount is attributable to Work previously completed or to be completed during such period. Accordingly, Contractor will invoice each periodic amount annually on or about each January 1, or at such other time or times as scheduled by Contractor.  If the Contract provides for ongoing renewal and extension of the Contract term, either automatically or at Customer’s option (and Customer has elected such option), Contractor may modify the Contract pricing to reflect its then-current rates or, otherwise, terminate this Contract on thirty (30) days’ prior notice to Customer. Should Contractor be unable to obtain any product/material specified in the Contract or any Change Order or if Contractor is prevented or delayed by any action or inaction of Customer, Contractor shall have the right at its sole discretion to partially perform the Work or substitute comparable product/material and such partial performance or substitution shall not affect the initial Contract. If amounts owing to Contractor hereunder are not paid when due, Customer agrees to pay a late charge on any outstanding balance at one and one-half percent (1.5%) per month on the unpaid amount calculated from the date payment was due or the highest legal rate under applicable law, whichever is lower. No Work will be rendered for any Customer with a past due account. Customer will be deemed to have accepted Contractor’s performance as complete under this Contract unless Customer notified Contractor in writing otherwise within thirty (30) days of the substantial completion date of the project or Change Order as the case may be. Should Contractor retain the assistance of a third party, including without limitation an attorney, to assist with collection of unpaid amounts due and owing, Customer agrees to pay Contractor’s costs associated therewith including reasonable attorneys’ fees, court costs, and interest at the maximum legal rate.

Zoning and Permits. Customer agrees to timely furnish all information necessary to secure plans and permits for the Work called for under this Contract, and Customer warrants the Work is in compliance with applicable zoning, classification, and building codes. Any costs for Work not in the Scope of Work but required to bring the Work into compliance with applicable building code, local ordinances, or other requirements, shall be the responsibility of the Customer at Customer’s sole cost and expense. Contractor assumes no responsibility for violation of zoning rules/laws.

Intellectual Property.  Customer acknowledges and agrees that, unless otherwise specified herein, Contractor owns and controls all schematics, drawings, plans, specifications, manuals, estimates, and other intellectual property created by or provided to Customer by Contractor pursuant to this Contract, and Customer shall not copy, duplicate, distribute, or in any way use such intellectual property without the written authorization of Contractor in each instance.  Any action or inaction by Customer not in strict compliance with the foregoing shall result in the imposition of an intellectual property fee payable by Customer to Contractor in an amount equal to fifteen percent (15%) of the full contracted price for all Work to be provided by Contractor under this Contract.  This provision shall survive the expiration or termination of this Contract for any reason.

Work Schedule. Work shall be scheduled and coordinated with Contractor’s overall schedule and availability. Should the Customer or project experience delays and Customer or the project site is, for any reason, not be ready for the Contractor as initially scheduled or at any point once Work has commenced, Customer understands that Contractor will leave the jobsite and will return once Contractor’s overall schedule allows. Performance by Contractor is subject to labor strikes, labor shortages, fires, acts of war or terrorism, acts of God, pandemic, adverse weather conditions, delays in transportation, Contractor’s ability to timely obtain materials, and/or any other cause beyond Contractor’s control.

Limited Warranty. Contractor warrants to Customer the installation of products and Work to be free from defects in workmanship from the substantial completion date for a Warranty Period specified in the Scope of Work or elsewhere in the Contract or, if not so specified, for a period of ninety (90) days (“Warranty Period”).  Contractor’s liability to the Customer hereunder is subject to the following: Customer must provide written notice to Contractor immediately upon discovery of any claimed defect covered by this Limited Warranty and before beginning any repair; and Customer must, at Customer’s sole expense, provide for protection of all property that could be affected until the defect is remedied. Contractor reserves the right to inspect the areas at issue to determine the cause of the alleged defects. If the defects are determined by Contractor to be within the scope of the Limited Warranty, Contractor will make the necessary repair. Contractor’s repair of the defect shall be the sole exclusive remedy available to the Customer with respect to any defect. Contractor will not refund or pay any costs in connection with repairs made by anyone other than Contractor. If any equipment or component has a manufacturer’s warranty of any type, this Limited Warranty does not warrant any damages or defects in the product except to the extent solely caused by Contractor’s installation or maintenance of the product. Contractor is not responsible for any warranties provided by any manufacturer. Contractor authorizes no third person or party to assume any warranty obligation or liability on Contractor’s behalf. Contractor shall not be liable during or following the Warranty Period for any: (a) repair or alteration made by anyone other than Contractor; (b) settlement or structural movement and/or movement of materials to which installed products are attached; (c) cleaning or damage due to ordinary wear and tear, neglect, misuse or abuse; (d) damage due to use of the product beyond the design specifications; (e) defects that are the result of characteristics common to the materials used or that are purely cosmetic or otherwise don’t affect the usefulness of the system or component; (f) loss, injury or damages caused in any way by weather elements or storms, including but not limited to wind, hail, or freezing temperatures; (g) conditions resulting from condensation on, or freezing, expansion or contraction of, any materials; (h) lack of proper maintenance; and (i) any cause other than workmanship defects attributable to Contractor. This Limited Warranty is in lieu of all other warranties, statutory or otherwise, express or implied, all representations made by Contractor, and all other obligations or liabilities respective of the Work. CONTRACTOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF WORKMANLIKE CONSTRUCTION, IMPLIED WARRANTY OF HABITABILITY, IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE, AND/OR IMPLIED WARRANTY OF MERCHANTABILITY. Under no circumstances shall Contractor be liable to Customer for loss of time, loss of use, inconvenience, loss of revenue or profit, or any other incidental or consequential damages that may arise from this Contract. Unauthorized repairs or attempted repairs shall void this Limited Warranty entirely. Any repairs made by Contractor pursuant to this Limited Warranty shall constitute a full settlement and release of all claims of any covered person/entity hereunder for damages or other relief and shall be a complete bar to any litigation subsequently filed.

Performance or Condition of Existing Equipment, Parts or Materials; Coordination. Contractor is not responsible for the reinstallation, performance, functionality, or compatibility of existing equipment, controls, parts, pipe, or other equipment, materials, products, or parts that are not included in the Scope of Work. The Limited Warranty will only cover the workmanship associated with the Work. In the event that an existing site conditions or piece of equipment, controls, parts, products, material or the like prevents the proper start up or operation of the project facilities, Customer assumes all responsibility for any additional service charges that may be incurred.  Customer additionally acknowledges and agrees (i) that any and all costs and expenses of Contractor for the removal, abatement, or disposal of any hazardous materials (whether under federal, state, or local laws, rules, and regulations) and blast media are at Customer’s sole cost and expense unless specifically assumed, in writing, by Contractor in the Scope of Work; (ii) Customer solely is responsible for removal, repair, and/or replacement (or the coordination with any third parties for removal, repair, and/or replacement) of any antenna, communication, telemetry, or electrical system(s) attached to or associated with any Customer facilities or equipment. To the extent this Contract or any other contract or agreement between Customer and Contractor includes or otherwise requires Contractor to coordinate with any prime contractor(s) or any other third party/parties, “coordination” is defined solely to mean a reasonable number of attempts by Contractor to contact such third party/parties for the purpose of coordinating efforts and scheduling, and Contractor in no way shall be liable for any additional cost or delay caused by or attributable to any third party’s inability or failure to effectively coordinate with Contractor. 

Risk of Loss, Insurance and Waiver of Subrogation. Risk of loss shall pass to the Customer upon delivery of materials, products and equipment to the Work site. Contractor shall not be responsible for any loss due to theft, vandalism, and/or malicious mischief, fire, water, electrical malfunction or surge, acts of God, severe weather or natural phenomena (including, but not limited to, unusual climate conditions), once delivered to Customer’s property. Customer shall assume all responsibility for any such loss and Customer shall maintain “all risk” insurance coverage to protect against such loss. Customer shall maintain property insurance upon the entire structure including all Work to be performed pursuant to this Contract to the full insurable value thereof. This insurance shall inure against the perils of theft, extended coverage, vandalism, malicious mischief, fire, water, electrical malfunction or surge, acts of God, severe weather or natural phenomena, (including, but not limited to, unusual climate conditions). Customer and Contractor waive all rights against each other, and Customer additionally waives all rights against Contractor’s subcontractors and sub-subcontractors, for damages caused by insured perils whether or not such damage is caused by the fault or negligence of any party hereto.  Specific insurance coverage requirements of Contractor for or with respect to the Work (including applicable coverage types, minimums, and deductible) are those specified on an attached schedule or, if none is attached, those from time to time obtained and maintained by Contractor for the Work and for its business generally.

Indemnification; Jurisdiction, Venue, Choice of Law. Except as otherwise provided by applicable law or as otherwise specified in the Contract, Customer shall indemnify, defend, and hold harmless Contractor and its respective directors, officers, employees, agents, sureties, subcontractors, and suppliers from and against any and all losses, costs, expenses, damages, injuries, claims, demands, obligations, liabilities, judgments, fines, penalties, interest and causes of action, including without limitation administrative and legal costs and reasonable attorney’s fees, involving the following: (a) injury or death to any person, or damage to or destruction of any property (including loss of use thereof), except to the extent caused by the sole negligence or intentional misconduct of Contractor; and (b) any failure of the Customer to comply with the requirements of the Contract. To the extent required by applicable law, jurisdiction and venue for purposes of the Contract shall be in the courts of the State and County in which the project site is located, and the internal laws of such State shall apply.

Severability. Should any part of this Contract be adjudged to be void, unenforceable, or contrary to public policy, only such void or unenforceable portion shall be stricken and eliminated hereof while the other portions remain valid and enforceable.

Performance. If Customer fails to perform any of Customer’s obligations herein or if Contractor, in good faith, believes that the prospect of payment or performance to be impaired, Contractor may discontinue all work and, at Contractor’s option upon seven (7) days written notice to Customer, terminate this Contract, while retaining all mechanic’s lien rights as well as right to payment for the full amount of work performed plus reasonable overhead and profit, interest, attorneys’ fees, and other charges due and unpaid.

Entire Contract. This Contract constitutes the entire Contract between Customer and Contractor. No Contracts, representations, or warranties other than those specifically set forth herein shall be binding on any of the parties unless set forth in writing and signed by both parties. In no event, however, shall the Work Schedule or Limited Warranty paragraphs as outlined herein be altered. Contractor only accepts Work under the Standard Exclusions, Work Schedule, and Limited Warranty paragraphs stated herein which supersede all other work schedules and warranties, oral, written, or implied, regardless of whether another document mandates or implies supersession. Customer has been represented in the negotiation, preparation, and execution of this Contract by Customer’s legal counsel and by its engineering and financial agents and representatives.