Terms and Conditions
1. Priority of Terms
These Terms and Conditions apply to all agreements and proposals between Customer and Contractor to which they are attached. Contractor hereby notifies Customer in advance that Contractor objects to and rejects any Terms and Conditions within any correspondence from Customer, contained in Customer’s payment remittance or other documents that conflict with the Terms and Conditions contained herein, whether or not the terms would materially alter the Terms and Conditions contained herein. If a contract is established through performance or other conduct and not via a written and executed contract, the Terms and Conditions here-in shall govern that performance. In the case of a conflict be-tween the terms of the Proposal and these Terms and Conditions, the terms of the Proposal shall control.
If indicated on Contractor’s Proposal, Customer shall deposit with Contractor the “Customer Deposit” amount upon execution of the Proposal. Contractor shall have no obligation to commence the work until it has received the Customer De-posit and, if not received at least seven (7) calendar days before the Contractor’s estimated commencement date, the time for Substantial Completion of the work shall be extended as necessary by Contractor to account for supplier and labor adjustments and constraints. The Customer Deposit will be applied in the manner set forth in Contractor’s draw schedule.
The Price specified in the Proposal includes any state and/or local sales or use taxes on the work or services per-formed, unless otherwise specifically stated in the Proposal. Unless explicitly listed in the Proposal, the costs of all permits and other governmental fees and approvals of relating to the work shall be the responsibility of Customer. The costs of all permits relating to the work shall be added to the Price at cost plus a $125 administrative fee without execution of a Change Order being required. Contractor will notify Customer of such costs prior to commencement of the work, or if unknown prior to commencement, promptly upon Contractor becoming aware of such costs.
4. Commencement and Schedule
By executing the Proposal, Customer memorializes its authorization of Contractor to commence work as of the date of execution, unless a different commencement date is provided on the Proposal, which such date shall control. The “Substantial Completion” of the work is the stage in the progress of the work when the work or designated portion thereof is sufficiently complete in accordance with the contract documents so that the Customer can occupy or utilize the work for its intended use.
5. Force Majeure
Contractor shall not be liable for delays in the completion of the project resulting from any circumstances beyond Contractor’s reasonable control or due to compliance with any sovereign decrees, orders, acts, instructions or requests of any federal, state, or municipal government or any department or agency thereof, civil or military, acts of god, acts or failure to act by Customer or anyone for whom Customer is responsible, fires, floods, public health emergencies, strikes, lockouts, embargos or wars. Contractor shall be entitled to an extension of time for a period equivalent to the time lost and an adjustment in the Contract Price by reason of any and all of such causes. Contractor shall keep Customer apprised of changes in the date of Substantial Completion.
Payments on each invoice are due within thirty (30) days following Customer’s receipt of the invoice. Interest shall accrue on payments not received on or before the thirtieth (30th) day after Customer’s receipt of the invoice at the lesser of (i) the maximum lawful interest rate or (ii) one percent (1.0%) per month, which interest shall compound monthly until the date all amounts owed to Contractor, including interest, are fully paid to Contractor. Customer agrees to make timely payment of each invoice to Contractor in the amount and on the terms specified in this Contract for the work rendered during the period covered by the invoice, regardless of whether Customer has a right to indemnity, insurance, or any reimbursement for remediation, restoration or construction on the project. If Customer identifies any exceptions, deficiencies or disputes as to the invoice, then Customer shall give Contractor written notice indicating any basis for the exceptions, deficiencies or dispute, providing specifics and all documents in support thereof, all within five (5) business days of Customer’s receipt of the invoice. Only good faith disputed amounts where timely, written notice has been given as required in this Contract may be withheld.
7. Change Orders
All changes to the work shall be made pursuant to a fully executed change order. Contractor shall have no obligation to continue with any affected work or initiate any new work until it is in receipt of a fully executed change order regarding same.
Contractor shall provide all services with the degree of care, skill, diligence, professional knowledge, judgment, and expertise expected in the industry, and according to sound work practices and accepted professional and generally accepted industry protocols, in a well-managed, organized, and efficient manner and to the reasonable satisfaction of the Customer. Contractor warrants and represents that all products and services provided or installed by the Contractor shall:(i) be of high quality; (ii) free from material defects; (iii) comply in all material respects with all applicable laws, regulations, standards, and codes; (iv) not violate any patent, copyright, trade secret, or other proprietary interests; and (v) otherwise conform in all material respects to the description or Statement of work and this Contract. Contractor’s warranty does not include remedies for defects or damages caused by normal wear and tear during normal usage, use for a purpose for which the project was not intended, improper or insufficient maintenance, acts of God or other events outside the normal conditions to which the work was anticipated to be subjected, modifications performed by Customer or others retained by Customer, or abuse. If, prior to the date of Substantial Completion and within one (1) year after the date of Substantial Completion of the work, any portion of the work is found to be not in conformance with the Proposal (“Defective Work”), Customer shall notify Contractor in writing within fourteen (14) days after the Defective Work is discovered and Contractor shall have a right to cure any such Defective Work. If Customer engages a third party to fix any such alleged defect(s) without first obtaining a written waiver by Contractor of its right to cure, Customer’s warranty with respect to Contractor’s work hereunder will be void. The parties acknowledge the prompt notice of any Defective Work is material to the Contractor’s ability to assess and correct any Defective Work, and that any obligation of the Contractor to correct the Defective Work as provided in this Section is waived if written notice is not received by the Contractor within the time set forth above.
If Contractor persistently fails to supply enough qualified workers, proper materials, or equipment to maintain the schedule of the work or fails to make prompt payment to its workers, subcontractors, or suppliers, disregards law or orders of any public authority having jurisdiction, or is otherwise guilty of a material breach of a provision of the Proposal, Contractor may be deemed in default. If Contractor fails to commence and to continue satisfactory correction of such default with diligence and promptness within seven (7) days after written notification from the Customer, then Customer shall give Contractor a second written notice to correct the default within a three (3) business day period after receipt of such second notice. If Contractor fails to promptly commence and continue satisfactory correction of the default following receipt of such second notice, Customer shall have the right to terminate Contractor. In addition, upon seven (7) days’ written notice to Customer, and an opportunity to cure within three (3) days, Contractor may terminate the Contract if Customer does any of the following: (i) fails to furnish reasonable evidence that sufficient funds are available and committed
for the entire cost of the project; (ii) assigns this Contract over Contractor’s reasonable objection; (iii) fails to pay Contractor in accordance with this Contract and Contractor has stopped work in compliance with applicable notice provisions; or (iv) fails in any material way to perform its obligations under this Contract beyond any applicable cure period set forth in this Contract. Contractor may terminate this Contract upon seven (7) days’ prior written notice to Customer if the work has been stopped by no fault of Contractor for a consecutive thirty (30) calendar day period or for a cumulative amount of ninety (90) calendar days over the course of the project.
10. Termination for Bankruptcy
Either Customer or Contractor may immediately terminate this Contract in the event the other party becomes bankrupt or otherwise insolvent.
To the fullest extent provided by law, each party shall indemnify and hold the other party harmless from and against any and all claims, losses, damages and expenses whatsoever, in law or in equity, including without limitation those for bodily injury, personal injury, sickness, disease, death or property damage and including, but not limited to, attorneys’ fees, whether based upon negligence, breach of express or implied warranty, strict liability, contract or any other theory, and from and against all direct damages of every kind whatsoever caused or claimed to have been caused by the other parties’ or its’ agents, employees, subcontractors, suppliers or any for whose act they may be liable, negligent or intentionally wrongful acts or omissions. Notwithstanding any-thing to the contrary contained herein, each party shall have the undeniable right to participate in the defense of any claims asserted against it, approve the selection of counsel and approve the terms of any settlements made in its name or on its behalf. These indemnity provisions shall not be construed to eliminate, or any way reduce any other indemnifications or rights which either party has by law or through the Proposal.
12. Waiver of Consequential Damages
Except for (A) losses covered and paid by insurance carried by either party, or (B) specific items of damages excluded from this waiver as identified below, the parties agree to waive all claims against each other for any consequential damages that may arise out of or relate to this Proposal. The following items of damages are excluded from this mutual waiver: (i) increased overhead caused by changes, delays, or other conditions outside the control of the Contractor and (ii) damages incurred by a non-breaching party as a result of the other party terminating this Contract without cause. This Section shall survive the expiration or termination of this Contract and the completion of the work. The parties shall require similar waivers in contracts with subcontractors and others retained for the project.
13. Contractor Insurance
Prior to commencing the work, Con-tractor shall, at its own expense, secure and maintain in force until completion and final acceptance of all work: (i) commercial general liability insurance of not less than $1,000,000 per occurrence and $2,000,000 aggregate; (ii) business automobile liability insurance of not less than bodily injury: $1,000,000 per person and $1,000,000 per occurrence; (iii) property dam-age: $1,000,000 per accident; and (iv) shall comply with the worker’s compensation laws and other employee benefit acts in each state where the work is to be performed.
14. Customer Insurance
This Builders Risk provision is a requirement only if specifically stated on the Proposal. When required the Customer shall purchase and maintain, in a company or companies lawfully authorized to do business in the jurisdiction in which the project is located, property insurance written on a builder’s risk “all-risk” or equivalent policy form in the amount of the initial contract price, plus the value of all subsequent change orders or other contract modifications and cost of materials supplied or installed by others, comprising the total value for the entire project at the site on a replacement cost basis without optional deductibles. This insurance shall include interests of the Customer, the Contractor, subcontractors, and material suppliers in the project. Property insurance shall be on an “all-risk” or equivalent policy form and shall include, without limitation, insurance against the perils of fire (with extended coverage) and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, windstorm, falsework, testing and startup, temporary buildings and debris removal including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for any design professional’s and Contractor’s services and expenses required as a result of such insured loss. The customer may also request that Contractors Inc secure the coverage and submit a change order for the costs associated.
15. Waiver of Subrogation
Customer and Contractor waive all rights against each other and their officers, employees and agents for damages caused by fire or other perils to the extent covered and actually paid for by property insurance provided under this Contract or other property insurance applicable to the work, except such rights each may have to proceeds of insurance.
The Proposal and these Terms and Conditions shall not be assigned by the Contractor without the prior writ-ten consent of Customer, in Customer’s sole discretion; provided, however, that Contractor is permitted to subcontract all or any portion of the work in its reasonable discretion without the consent of the Customer. Customer shall not assign the Proposal and these Terms and Conditions without the prior written consent of the Contractor, in Contractor’s reasonable discretion. Contractor shall remain fully liable and responsible for performance of the work and Proposal, including the conduct of any subcontractor. Any attempt to assign the Proposal and these Terms and Conditions without having first obtained such written approval shall be null and void.
17. Independent Contractor
Contractor is at all times an independent contractor.
18. Dispute Resolution
The parties shall first attempt to resolve disputes through informal discussions with representatives having authority to agree on such resolutions within fifteen (15) business days of the initial written request for such a meeting. Non-binding arbitration shall follow, and the parties shall agree upon the mediator. Claims not resolved through mediation shall proceed to litigation.
19. Governing Law; Jury Waiver
The Proposal and these Terms and Conditions, all rights and obligations between the parties to the Proposal, and all claims arising out of or relating to the subject matter of the work and the Proposal (including tort claims), will be governed by the laws of Ohio without regard to conflict of laws principles. The parties further waive their right to trial by jury.
The provisions of these Terms and Conditions are divisible. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be invalid or unenforceable in whole or in part or as applied to any person or circumstance, such provision shall be ineffective only to that extent without invalidating or rendering unenforceable any other provision of these Terms and Conditions.
21. Entire Agreement
The Proposal and these Terms and Conditions comprise the entire agreement between the parties related to its subject matter and supersedes all prior or contemporaneous understandings, statements or agreements between the parties on such subject matter. No changes, amendments or clarifications of these Terms and Conditions will be valid or effective unless in writing and signed by an authorized representative of the party to be bound.
22. Changed Conditions or Hazardous Materials
Should Contractor encounter any (i) existing hazardous conditions or materials, (ii) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the con-tract documents or (iii) unknown physical conditions of an unusual nature which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the contract documents, the Contractor shall immediately notify Customer of the same and cease working in such area until further written direction of the Customer and Contractor shall be entitled to an equitable adjustment in the Contract Price and/or delivery schedule.
Additional Terms When Applicable
Customer has deposited with Contractor the deposit which shall be applied on the contract price upon completion of the work. In the event the Customer cancels or refuses to permit the contract to be completed Contractor will be paid the prorated percentage of the contract completed, including change orders and any such payments shall not in any way prejudice the rights of the Contractor in any actions for damages or specific performance. This contract shall not be binding upon Contractor until accepted by written authority of the Contractor. Customer to take necessary precautions with normal construction vibration and dust. Customer will advise Contractor of asbestos presence. Contractor cannot be held liable for ventilation problems related to inherent defective design or building practices. Any structural repairs will be performed on a time and material billing basis upon acceptance of an approved change order.
Customer is to take necessary precautions with normal construction vibration and dust. Customer will advise Contractor of asbestos presence. Contractor cannot be held liable for ventilation problems related to inherent defective design or building practices. Any structural repairs will be performed on a time and material billing basis. Fasteners may penetrate and be visible at the underside of all exposed roof deck areas. Contractor is not responsible for damage to concealed lines and lines attached directly to underside of substrate such as, but not limited to electrical, alarm, water, or air conditioning. It is the customer’s responsibility to notify tenants of construction at job site and require tenants to take precautions to protect contents from normal construction vibration and dust. Contractor will not be responsible for the sampling, testing or removal of any material containing asbestos. Asbestos, if determined to be present, is the full responsibility and liability of the Customer or building owner who shall make prompt arrangements for abatement without cost delay to Contractor.
The owner is responsible for the disconnection and reconnection of any mechanical equipment and satellite equipment that needs to be removed, raised or lowered in order to install the roofing system. Smaller condensing / heat pump and satellite dish units will have to be raised and reset in order to install new roofing system. Contractor may provide this service without an HVAC contractor / satellite contractor as a cost savings convenience to customer, but customer will not hold Contractor responsible for breakage of any lines during construction or misalignment of satellite dish. Customer is advised to have drains professionally inspected and cleared prior to construction as Contractor cannot take responsibility for any damage caused as the result of clogged or semi clogged drains. Contractor will protect drains from debris during construction. Customer hereby acknowledges and agrees whether or not customer experience mold growth on its property depends on how customer manages and maintains the property. Customer agrees that Contractor will therefore not be held responsible for any damages, including but not limited to property damage, personal injury, loss of income, emotional distress, death, loss of use, loss of value, and adverse health effects, caused by mold, or some other similar agent, that may be associated with Contractor’s work.