Terms & Conditions

Agreement. Unless otherwise agreed in a written document signed by the Progradecontrol, these Terms and Conditions of Service (“Terms”) govern the purchase of services (“Services”) by any individual or entity that purchases such Services (“Client”).  The placing of an order with progradecontrol.com or the receipt or acceptance of Services by Client constitutes Client’s acceptance of these Terms exactly as written.

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Order and Delivery of Services. All orders for Services are subject to credit approval and final acceptance by Progradecontrol in its sole discretion. If Client requests partial shipment of its order for Services, payment for the partial order must be made pursuant to Section 6 below.  Progradecontrol shall have no liability for any delay in performance of Services caused by any circumstances beyond its reasonable control, including, but not limited to, delays caused by acts of God, acts of war or terrorism, fire or other casualty, storms or adverse weather, strikes, labor shortages or disturbances, shortages of materials, manufacturer delays, theft or vandalism, transport and handling accidents, or revisions to laws, regulations or governmental requirements.

 

Cancellation. Client may cancel all or part of any purchase order for Services once a purchase order is issued to Progradecontrol only if written notice of cancellation is received by Progradecontrol at least 30 days before the scheduled delivery date of the Services. In such instance, Client shall pay for any special work or customization performed by Progradecontrol prior to Progradecontrol's receipt of the written cancellation notice.

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Pricing. Unless otherwise set forth on a written quote issued by Progradecontrol (“Quote”), the labor rates for Services shall be Progradecontrol's standard labor rates for the applicable type of Service (site data prep, road data prep, quantity take-offs, virtual design and construction services, or specialty rates, as applicable) in effect at the time the Services are performed.  

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Payment Terms. Payments are due 30 days from date of invoice.  Client shall pay a late charge of 1.5% of the invoice balance each month until charges are paid in full, and Client shall pay Progradecontrol all reasonable attorneys’ fees and collection costs incurred by Progradecontrol. 

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Warranties.

(a) Services. If Client is purchasing Services from Progradecontrol, the Services will be completed in a good and workmanlike manner and will meet the engineer’s specifications at the time the Services are completed. Progradecontrol makes no further warranty, express or implied, with respect to Services once the Services have been accepted by Client.

(b) WARRANTY DISCLAIMER. TOPS makes no warranty, express or implied, with respect to any Services other than the foregoing warranties, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose or any implied warranties that may arise from the course of dealing between the parties. To the maximum extent permitted by law, all such warranties are hereby disclaimed by Progradecontrol and waived by Client.

 

Use of Data. Client must treat as confidential all drawings and data submitted by Progradecontrol pertaining to price, size, and design. 

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Indemnification. Each party agrees to defend, indemnify and hold harmless the other party for, from and against any third party claims related to the Services to the extent such third party claims (including, but not limited to claims related to the death or injury of any person(s) or damage to or destruction of any real or personal property) are caused by the indemnifying party’s negligent acts or omissions, subject to the limitations set forth in Section 10 below.

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10. Liability Limitation. In no event shall either party be liable, whether based in contract, warranty, indemnity, tort, strict liability or any other theory of law or equity, for any special, incidental, indirect, punitive, exemplary or consequential damages, including, but not limited to, lost profits, loss of use of property or equipment, downtime, loss of third party contracts or lost production, regardless of whether or not such party was advised of the possibility of such damages. In addition, Progradecontrol’s maximum aggregate liability (whether in contract, warranty, indemnity, tort, strict liability or any other theory of law or equity) for damages or loss, howsoever arising or caused, shall in no event exceed the amount Client paid to Progradecontrol for the Services to which the liability relates. The parties recognize that the pricing associated with Services reflects this allocation of risk and is the basis of the bargain between the parties. The foregoing limitations shall be valid and enforceable, notwithstanding any alleged failure of essential purpose of the limited remedies set forth herein. Any and all claims arising out of or relating to the Services will be barred unless a legal proceeding is commenced within one (1) year from completion of the Services.

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Choice of Law. These Terms shall be governed by and construed in accordance with the laws of the State of Florida without giving effect to conflict of law provisions. The parties agree that exclusive jurisdiction and venue for any proceeding at law or in equity will be in the state or federal courts located in Lee County, Florida.

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General Provisions. Client may not assign Client’s rights or obligations hereunder without Progradecontrol’s prior written consent, and any such attempted assignment will be void. If any provision in these Terms is found to be invalid, unlawful or unenforceable, the remaining provisions in these Terms shall remain in full force and effect. A party’s waiver of any breach will not constitute a waiver of any different or subsequent breach. No employment, agency, joint venture, or similar arrangement is created or intended between Client and Progradecontrol. Progradecontrol is an EEO/Affirmative Action Employer. Client warrants that the invoiced Services will be used for business or agricultural purposes.

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Rev. 9 August 2024

 

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