Viking Fence Subcontract Terms & Conditions
1. Contract Documents: Viking Fence Company utilizes these Standard Subcontract Terms in every contract between Viking and any General Contractor.The term “General Contractor” means any person or entity, other than a property owner, with which Viking contracts, performs work, or supplies materials. These Standard Subcontract Terms are posted at www.vikingfence.com. A condition precedent to the formation of any contract between Viking Fence and a General Contractor is the written acknowledgement by General Contractor that these Standard Subcontract Terms apply to such Contract. To the extent of any conflict between these Standard Subcontract Terms and other Contract Documents pertaining to a construction project, these Standard Subcontract Terms shall control. It is the practice of Viking Fence to append these Standard Subcontract Terms to any proposed Subcontract at the time Viking executes such document. Whenever Viking Fence signs a proposed Subcontract, and such document has not yet been signed by proposed General Contractor, it is a condition precedent to the formation of any Subcontract that the General Contractor return to Viking Fence a fully signed copy of the proposed Subcontract, confirming acceptance of these Standard Subcontract Terms, within ten days. Unless this condition precedent is satisfied, no binding contract exists between Viking Fence and such proposed General Contractor. No performance, course of dealing, or other conduct by either Viking Fence or the proposed General Contractor shall constitute ratification of any written contract terms, or other manifestation of assent to such written contract terms. To the contrary, Viking Fence shall be compensated for any work done on the basis of fair market value, with Viking’s last bid serving as the conclusive basis of the fair market value of the goods and services described therein and performed by Viking Fence.
2. Engineering Services: Viking Fence does not employ registered professional engineers nor does it offer engineering services. Notwithstanding any contrary language in any Contract Document (whether plans, drawings, specifications, blue prints, or contract documents between or among an Owner, general contractor, or any subcontractor), Viking does not agree to perform engineering or similar services, or “seal” any proposed drawings. To the contrary, it is the responsibility of the Owner to provide engineering and architectural drawings and specifications that, if followed accurately by Viking Fence, will result in legally compliant and structurally safe and sound components. To the extent that Viking Fence provides cost estimates or bids prepared in reliance upon documents or specifications supplied by a party other than Viking Fence, and subsequently such specifications or drawings prove inadequate, Viking Fence shall be entitled to reasonable compensation to the extent that it incurs any increase in labor or material expense in order to comply with any necessary changes in design or specification.
3. Contingent Payment Clause: Terms used in this paragraph shall have the same definitions as set forth in Section 56.001 of the Texas Business and Commerce Code. Regarding any Viking Fence invoice or payment application (“Invoice”) submitted to General Contractor, no contingent payment clause shall apply unless the Owner is invoiced for the amounts reflected in Viking’s Invoice within 20 days of General Contractor’s receipt of Viking’s Invoice. A contingent payment clause is not enforceable if nonpayment by the primary obligor or any contingent payor results from contractual breaches by any contingent payor, except to the extent such breaches arise solely from breaches by Viking Fence.
4. Incorporated Documents: If any Subcontract incorporates by reference other documents, such as architectural drawings, plans, specifications, a general contract, or other subcontracts, as a matter of fairness Viking Fence will agree to be bound by only such documents, or portions thereof, that are actually delivered to Viking not less than 48 hours before Viking Fence has signed a Subcontract, or 72 hours for documents that exceed 50 pages. The parties expressly agree that absent such fair and meaningful opportunity for Viking to review incorporated documents, it would be unconscionable to bind Viking to them.
5. Change Orders: If General Contractor (i) instructs Viking to provide labor or materials exceeding those specified in the Subcontract, (ii) receives a written estimate from Viking regarding the additional cost of such labor or materials, and (iii) approves in writing (including email or facsimile) such additional work, the General Contractor shall be liable to Viking Fence for payment of such additional work, notwithstanding any contrary provision of the Subcontract or any other provision in any Contract Document, including without limitation Contingent Payment Clauses, change order requirements, or other provisions requiring Owner approval of change orders. In this regard, the parties acknowledge that it is primarily the obligation of General Contractor to ensure that all requisite approvals are obtained before General Contractor instructs Viking Fence to perform additional work.
6. Dispute Resolution: Viking Fence agrees to arbitrate any dispute between Viking Fence and General Contractor, or any other party performing work on the project forming the subject matter of the Subcontract, provided such arbitration is conducted by the American Arbitration Association under its Construction Industry Rules in the county where the project is located. Otherwise, Viking Fence does not consent to arbitration. Viking Fence shall never be bound by any purported adjudication of its rights or claims unless it is an arbitration or lawsuit in which Viking Fence is a named party. By way of example, Viking Fence shall never be bound by any provisions in any Contract Document purporting to allow an Owner, architect, engineer, or other person to impose upon Viking Fence a binding adjudication of any sort.