These Project Management Terms apply to the purchase by Customer and provision by Orange of Project Management Services.Project Management Services. General. Where Customer has engaged Orange to provide Project Management Services for the installation of Orange Devices at an Authorized Location (a “Project”) pursuant to an Order, Orange will perform the Project Management Services set out in the Order.Project Management Services. Project Management Services will consist of Orange overseeing all or some portion of the following for the Project, as provided in the Order: Project designmanagement of hiring certified electrician/s and other required vendors/contractors (“Project Vendors”);electrical work;permitting; andinstallation and activation of the Orange Devices.If Orange has agreed to perform Contracted Work (as defined below) in an Order, Project Management Services will include performance of the Contracted Work.Responsibility for Project Work. Except where Orange has expressly agreed in the Order to take responsibility for performing (directly or through a subcontractor) a portion of the work or materials for the Project (such portion “Contracted Work”, and the work performed for a Project other than Contracted Work, “Managed Work”), Orange’s role will be solely to oversee the Project and the applicable Project Vendors, and all Project Vendors will be engaged directly by Customer.
Project Costs. Project Costs. Orange will acquire quotes for all work and materials and permitting for the Project to determine the estimated cost for all such work, materials and permitting for the Project (the costs for such work, materials and permitting, the “Project Costs”). Orange will present the quotes to Customer, including the proposed Project Vendors, before the start of the Project. To the extent Customer obtains any quotes directly from a Project Vendor, Customer will provide those quotes to Orange.Estimated Total Project Costs. All quotes, and the estimated Project Costs, must be approved by both Customer and Orange before the Project starts (the approved estimated Project Costs, including for Managed Work and any Contracted Work, but excluding any estimated incentives (as described in Section 7 below), the “Estimated Total Project Costs”).Responsibility for Actual Costs. Orange will use reasonable efforts to obtain fixed fee or “not to exceed” quotes, but Customer acknowledges that if a vendor or service provider has not agreed to a fixed fee or “not to exceed” amount, actual amounts billed may exceed estimated amounts, and in that case Customer is responsible for payment of the actual amounts.Pricing and Invoicing. Except as otherwise agreed in the Order, fees for Project Management Services, excluding amounts payable for performance (not project management) of Contracted Work (“Project Management Fees”) are 20% of the Estimated Total Project Costs; provided that if, after the determination of the Estimated Total Project Costs, the scope of the Project materially changes, then the Estimated Total Project Costs for purposes of determining the Project Management Fees will be adjusted to reflect the estimated Project Costs after the change in scope, in each case as determined by Orange. Amounts due for performance of Contracted Work (“Contracted Work Amounts”) and invoicing for all Project Management Services will be as provided in the Order. Cancellation of Orders. Customer may not cancel an Order for Project Management Services after any Managed Work or Contracted Work has commenced, or Orange has provided any other Project Management Services. If Customer cancels an Order for Project Management Services in violation of this Section, all Project Management Fees under the Order (whether or not the Managed Work or Contracted Work has been performed) shall become immediately due and payable, and Customer will pay those Project Management Fees and the Contracted Work Amounts for Contracted Work performed prior to cancellation and any actual costs incurred by Orange as a result of the cancellation, including any costs associated with commitments for Contracted Work not yet performed that cannot be cancelled.
Managed Work. Responsibility for Managed Work. Project Vendors, and not Orange, are solely responsible for the services and materials they provide as part of Managed Work and Customer, and not Orange, is solely responsible for payment of fees to the Project Vendors for the Managed Work.Project Vendor Warranties for Managed Work. As part of the Project Management Services, Orange will use reasonable efforts to request that Project Vendors provide a warranty for Managed Work comparable to the warranty for Contracted Work in these Project Management Terms, but any warranty provided by the Project Vendor for Managed Work will be as agreed between Customer and the Project Vendor pursuant to Customer’s engagement of the Project Vendor. Managed Work is warranted by the Project Vendor and not by Orange and Orange will have no responsibility for Managed Work or its performance or quality.Post Project Support. During the one-year period beginning on the date of substantial completion of the Project, if Customer notifies Orange of any defect in the quality of any Managed Work for a Project that is material and is not inherent in the quality of the work the Order requires or permits, then as part of the Project Management Services for the Project, Orange will provide Customer reasonable assistance in managing and working with the applicable Project Vendor for the repair of the defect, including in exercising its remedies under any Project Vendor warranty that covers the defect or in obtaining a repair from the Project Vendor at Customer’s cost if no warranty applies.Contracted Work. Contracted Work is subject to the additional terms described on Annex 1 - Contracted Work to these Project Management Terms.Permitting. As part of the Project Management Services for a Project, Orange will provide Customer with reasonable assistance in applying for and obtaining any permits, consents or other authorizations required for the Project from governmental authorities having jurisdiction over the Project and the Authorized Location (“Permits”). Customer acknowledges and agrees that Orange has no control over the issuance of any Permit or the governmental authorities issuing the Permits, and the availability of and requirements for obtaining any Permit may change at any time. Customer will be solely responsible for understanding the Permits required for the Project and for applying for and obtaining the Permits, and Orange will have no liability for failure by Customer to apply for or obtain any Permits.Incentives. Where the Order for Project Management Services identifies an incentive program that Customer and the Project may be eligible for (an “Incentive”), the additional terms described on Annex 2 – Incentives to these Project Management Terms.
Annex 1 to Project Management Terms – Contracted Work Responsibility for Contracted Work. Orange will be responsible for performing or engaging Project Vendors to perform any Contracted Work as agreed in the applicable Order. Customer will pay Orange directly for Contracted Work, and Orange will be solely responsible for payment of Project Vendors engaged by Orange to perform the Contracted Work. To the extent Orange uses a Project Vendor to perform electrical installation services then Orange will ensure the Project Vendor is fully licensed to perform its work in compliance with all applicable license requirements in the Project jurisdiction.
Exclusions. Unless otherwise agreed in an Order or via a Change Order, the Contracted Work excludes the provision of or payment for the services, activities and work set forth below:
- Removal, remediation or disposal of any hazardous substances’
- Removal or replacement of existing rot, rust, or insect infested structures;
- Structural framing;
- Correction of construction errors, omissions, and deficiencies by the Customer or vendors hired by the Customer;
- Removal or remediation of mold, fungus, mildew, or organic pathogens;
- Install of any smoke/carbon monoxide detectors, sprinklers, or life safety equipment required by municipal code or inspectors as a pre-condition of approval of the Contracted Work;
- Removal or re-location of equipment, obstacles, or vegetation in the vicinity of the Contracted Work;
- Municipal design or architectural review, or other specialty permits, including attendance at any public hearings, notification of neighbors, or additional drawings required;
- Structural engineering review and soil analysis;
- Repair of damage to roadways, sidewalks, or driveways that may occur when construction equipment and vehicles are being used in the normal course of construction unless such damage is caused by the negligence of Orange;
- Improvements to the Authorized Location needed to support the Contracted Work;
- Services, activities or work required due to changes in laws or regulations after the Order is signed;
- Any other services, activities or work not specifically identified in the Order or Change Order.
HOA Approvals. Customer must notify Orange in writing if there is a Home Owners Association (HOA) involved. Customer is responsible for all HOA applications, fees, and obtaining approvals. Additionally, Customer agrees to email or fax a copy of the HOA Approval to the Orange upon receipt.
Access to Work. Customer shall grant free access to work areas for workmen and vehicles and reasonable assistance to Orange for performance of the Contracted Work and any related inspections. Customer will allow areas for storage of materials and rubbish and will keep driveways and parking areas clear and available for movement and parking of trucks during normal work hours. Orange and workmen will not be expected to keep gates closed for animals or children or provide work area security.
Preparation for Work. Customer is responsible for making the Authorized Location ready and in the condition Orange used to create the proposal on which the Order was based. During or prior to performance of the Contracted Work, Customer will not move, remove, modify, alter, or change in any way the area of the Authorized Location where the Contracted Work will occur or any part of the equipment or materials to be used by Orange to perform the Contracted Work without the prior written approval of Orange. Customer will take reasonable steps to protect the area and any such equipment and materials from damage or injury if, due to an emergency, it is not possible or reasonable to notify Orange before taking any actions.
Unanticipated Work. Customer is solely responsible for the coordination and expense of any unanticipated work during performance of the Contracted Work due to a difference in conditions or change in assumptions from those described in the Order or the proposal on which the Order was based. If any unanticipated work is required, a Change Order will be required.
Pre-Existing Conditions. While Orange will exercise reasonable care in performing the Contracted Work, Orange will not be responsible for pre-existing conditions at the Authorized Location or for damages or problems arising from pre-existing conditions.
Change Orders:
- General. The fees and any materials and quantities listed in the Order for Contracted Work are Orange’s good faith estimate based on all factors known to Orange at the time of such estimate. However, changes to the Contracted Work may become necessary after the Project has commenced. Either Party may initiate a change order (a “Change Order”) making changes to the Contracted Work as set forth in the Order. The Change Order must describe the scope of the extra work or change, any changes to the fees and any materials or quantities listed in the Order, and any changes to timing of the performance of or payment for the Contracted Work. Change Orders become part of the Order once the Change Order is prepared in writing and signed by the parties prior to the commencement of any work covered by the Change Order.Orange and Customer will negotiate any Change Order and associated changes in good faith. Orange shall be entitled to reasonable overhead and profit on any Change Order requested by Customer or required. If the Parties cannot agree on the compensation or any other changes for a required Change Order, Orange may at its discretion nevertheless proceed with such extra work and/or materials as may be required to successfully complete the Contracted Work with any disagreement to be resolved pursuant to the dispute resolution provisions of the Agreement. Where Orange is responsible for any permitting or incentive paperwork, Customer authorizes Orange to subsequently make corrections to any utility and incentive paperwork to conform to any Change Order.Customer must contact Orange's office to initiate any Change Order rather than through installation crew staff on site at the Authorized Location. Although all Change Orders should be committed in writing, any changes to the Contracted Work requested by Customer or required by Orange for the successful installation of the Contracted Work and for which Orange discusses such contemplated changes with Customer and Customer gives verbal assent, such verbal assent by Customer to such changes will have the same full force and effect as written assent once Orange has commenced the changes that were so discussed with Customer.
- Unavailability of Quoted Materials. Dependency on suppliers’ manufacturing capacity and deliveries may periodically result in unavailable products at the time needed for the particular Contracted Work. Orange has the right to substitute a “like product” should the originally quoted materials not be available. The term “like product” means products of like quality, price, and performance to the product specified.
-Discovery of Previously Unknown Condition. Orange may initiate a Change Order when circumstances exist or are discovered that require additional work to be done outside of the defined scope of the Contracted Work. Such circumstances could include the need to modify existing wiring, make repairs or reinforcements to the area of the Authorized Location where the products will be installed per the Contracted Work, or any such task that may be required to successfully complete the Contracted Work and assure that it conforms to local building codes and permitting requirements.
- Requirements of Permitting Jurisdictions or Other Organizations. Orange may initiate a Change Order in certain circumstances where the permitting jurisdiction or other organizations (such as an HOA) require additional work beyond the scope of a typical installation. Examples of this include soil analysis, environmental impact reports or archeological studies. In addition, if Orange determines that these permitting related fees will significantly exceed typical permit amounts, Orange may stop permitting work to discuss the additional costs with Customer. If Customer agrees to the additional costs they will be incorporated into the Order via a signed Change Order. If Customer does not agree, the Order may be terminated by either party without penalty or fee (provided that Orange will be paid for any services rendered and materials provided prior to termination).
- Installation Delays. If installation is delayed by more than seven (7) days once Contracted Work has commenced due to acts or omissions or other fault of Customer, Orange will have the option to require a Change Order to account for any additional costs or changes to the schedules or may in its sole discretion cancel the Order.
- Customer Initiated Change(s). Customer may initiate a Change Order to request changes to the Contracted Work following start of construction. Such circumstance could include requests to move an installation to a different area of the Authorized Location, requests to remove or relocate existing fixtures, or any additional work or task outside the original scope of the Contracted Work. Any such requested changes shall only be effective upon written agreement by the parties to a Change Order reflecting such changes and any additional compensation and changes to timing or materials.
Lien Releases. Orange will promptly pay or bond around (and secure the discharge of any liens asserted as a result of) any sums it owes to any Project Vendors engaged by Orange to perform Contracted Work to assure that the Project and site remain free of lien claims from the Project Vendors, provided Orange has been paid to the extent required under the terms of the applicable Order and this Agreement. Orange will furnish to Customer releases of claims and other documents as reasonably requested by Customer to evidence the payment (and discharge) of sums owed by Orange to Project Vendors.
Warranty for Contracted Work. Orange warrants to Customer that the Contracted Work will be performed in a professional and workmanlike manner consistent and in substantial conformance with the requirements of the applicable Order and will be free from material defects in worksmanship. This warranty will apply for a period of one (1) year commencing on date of substantial completion of the Contracted Work. Customer must notify Orange in writing of any claim of breach of this warranty within the warranty period and no later than thirty (30) days after Customer becomes aware of the asserted breach. Customer’s exclusive remedy and Orange’s entire liability for breach of this warranty will be for Orange to use commercially reasonable efforts to re-perform the deficient Contracted Work in compliance with the warranty. This warranty expressly excludes materials, which include only the warranty provided by their manufacturer, if any (Orange Devices are provided with the warranty described in the Product Terms), and any other defect in the Contracted Work resulting from a cause other than the quality of worksmanship.
Annex 2 to Project Management Terms – Incentives
Assistance Provided. Where the Order for Project Management Services identifies an Incentive, as part of the Project Management Services, Orange will provide Customer with an estimate of the Incentive together with the estimated Project Costs provided pursuant to Section 2 of the Project Management Terms, and with reasonable assistance in applying for and obtaining the Incentive.
Unless specified in the Order, Customer, and not Orange, will apply for the Incentive.
Responsibility for Incentives. Customer acknowledges and agrees that Orange has no control over any incentive programs or the authorities offering the Incentive, and the availability of and requirements for obtaining any Incentive may change at any time. Customer is solely responsible for ensuring they understand the rules and eligibility requirements for any Incentive and for obtaining any Incentive, and Orange will have no liability for failure to obtain any Incentive.
No Effect on Payment Obligations. Customer is responsible for payment to Orange and the applicable Project Vendors of the full amount of all Project Costs, including payments to Orange for Orange Devices, Project Management Fees, and Contracted Work Amounts, even if an Incentive or any portion thereof is not received. If an Incentive is not received, or not received in the estimated amount, prior to the date when final payment for a Project is due, then Customer is responsible for payment to Orange of any amount by which payments were reduced in anticipation of the Incentive or portion of the Incentive that was not received.