MASTER RESTORATION GENERAL TERMS AND CONDITIONS OF SERVICE
1. APPLICABILITY – These terms and conditions for services (these “Terms”) are the only terms that govern the provision of services by Contractor to Customer. The accompanying Order Confirmation (the “Order Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Confirmation, these terms shall control. These terms prevail over any of Customer’s general terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
2. SERVICES – Contractor shall provide the Services to Customer as described in the Order Confirmation in accordance with these Terms.
3. COMMENCEMENT OF THE WORK AND DELAYS IN EXTENSIONS OF TIME – The Contractor shall begin the Work on or about the commencement date, when specified. The Contractor shall use reasonable efforts to meet any performance dates specified in the Order Confirmation. If the Contractor is delayed at any time in the progress of the Work by any act or neglect of the Customer or any employee or separate contractor employed by the Customer, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in transportation, adverse weather conditions not reasonably anticipatable, unavoidable casualties, or any causes beyond the Contractor's control, or by delay authorized by the Customer, then the Contractor shall not be responsible for any substantial delay in completion of the Work. The Customer shall not allow work to be performed by any subcontractors, contractors, laborers, craftsman, distributors or other persons on this project or the site except as provided by the Contractor, pursuant to the terms of this agreement until the Contractor has completed all of its work and has been paid in full, absent the Contractor’s written consent. Estimates, if any, of Completion Dates, material costs, labor hours, etc., set forth in the Order Confirmation are estimates only.
4. CHANGES IN THE WORK – All changes in the work shall be authorized by a written Change Order. Such written Change Order may take the form of email, text message, or any other form of written communication accepted by Contractor and no such Change Order shall be effective until accepted by Contractor. All additional changes resulting from Change Orders shall be paid by the Customer as stated in the Change Order. The Agreement is based on the scope of work contained in the Order Confirmation and any corresponding estimate. If Customer contracts or performs some of the repairs or work, Customer shall be in breach and Master Restoration will retain the overhead and profit on those repairs and work done or contracted by the Customer.
5. CUSTOMERS RESPONSIBILITIES – The Customer shall furnish all information required regarding the physical characteristics, legal limitations and utility locations for the site of the Work. The Customer is responsible for the security and protection of all completed work and all equipment and materials that have been delivered to the site. If more than one Customer signs this Agreement, the signature of only one Customer shall be necessary on any future documents pertaining to this project, including but not limited to Change Orders and payment authorizations, and all Customers agree to be bound.
6. ACCESS TO THE SITE OF THE WORK – The Customer shall provide the Contractor with access to the work area including ingress and egress. The Contractor will exercise reasonable care to avoid damage to shrubs, trees, lawns, foliage, flowers, etc. Customer shall be responsible for properly locking away any pets that may impair Contractor’s ability to perform the repairs. Customer shall also use care to avoid being physically in the working areas while work is being performed. Contractor shall not be responsible for any injuries suffered by Customer as a result of their presence in the working areas and Customer agrees to hold Contractor harmless in the event Customer suffers any injuries.
7. CONCEALED CONDITIONS – Should concealed conditions encountered during the performance of the work below the surface of the ground or should concealed or unknown conditions in an existing structure be at variance with the conditions indicated by the Agreement, or should unknown physical conditions below the surface of the ground or should concealed or unknown conditions in an existing structure of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement be encountered, the Contract Price shall be equitably adjusted by Change Order upon claim by either party made within (10) days after the first observance of conditions. If the Contractor wishes to make a claim for an increase in the Contract Price, he shall give the Customer written notice thereof within (10) days after the occurrence of the event giving rise to such claim. This notice shall be given by the Contractor before proceeding to execute the Work. No such claim shall be valid unless so made. If the Customer and the Contractor cannot agree on the amount of the adjustment in the Contract Price, it shall be determined by mediation and then, if such mediation is unsuccessful, arbitration. Any change in the Contract Price resulting from such claim shall be authorized by Change Order. If the Customer fails to inform the Contractor of the concealed utilities, the Customer shall indemnify the Contractor from any costs or liabilities arising out of damage to concealed utilities.
8. PAYMENT BY CUSTOMER AND INSURANCE PROCEEDS – Customer agrees to pay Contractor the amounts due under the Order Confirmation, any approved Change Orders, and any applicable invoices in accordance with this Agreement. Customer acknowledges that this Agreement is between Customer and Contractor and that Customer remains ultimately responsible for payment for all services and materials provided, regardless of the amount approved or paid by any insurance company.
Customer authorizes Contractor to communicate with Customer's insurance company, adjusters, consultants, and other representatives for the purpose of documenting damages, preparing estimates, negotiating the scope of repairs, submitting supplements, and assisting with the adjustment of the insurance claim.
When permitted by the insurance carrier, Customer authorizes the insurance company to issue payment directly to Contractor or to include Contractor as a joint payee on insurance payments for services performed under this Agreement. Contractor may endorse jointly payable insurance checks solely for the purpose of receiving payment for services rendered under this Agreement. Any deductible, depreciation, betterment, policy exclusions, non-covered items, upgrades requested by Customer, or any amount not paid by the insurance company shall remain the sole responsibility of Customer.
If insurance proceeds are issued directly to Customer for services performed by Contractor, Customer agrees to promptly remit those proceeds to Contractor upon receipt, to the extent payment is due under this Agreement.
Contractor may request reasonable documentation demonstrating the availability of funds to complete the Project. Failure to provide such documentation or to make payments when due shall constitute a material breach of this Agreement and may result in suspension of work or termination of this Agreement.
9. REPRESENTATION AND WARRANTY
(a) The Contractor warrants that the Work shall be free from any defects in workmanship for a period of one (1) year from the Completion Date. Materials furnished by Contractor shall be warranted ONLY as provided by the manufacturer’s warranty. Notwithstanding any provision herein to the contrary, Contractor’s limited warranty shall not take effect, and Contractor shall have no obligation to honor warranty claims or perform punch-list adjustments, until the project contract balance is paid in full and final payment has been successfully collected by Contractor. Failure to make payments when due shall suspend all warranty coverage until such time that the outstanding balance is fully paid and cleared. The Contractor reserves the right to repair or replace any deficiencies in its work, both during the construction process and thereafter. Failure of the Customer to provide the Contractor with an opportunity to repair or replace such deficiencies shall excuse the Contractor from any obligation to pay for repairs or replacements incurred by the Customer.
(b) THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL AGREEMENT, GUARANTY, PROMISE OR REPRESENTATION SHALL BE BINDING. IN NO EVENT WILL THE CONTRACTOR BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, CUMULATIVE DAMAGES FOR BREACH OF THIS CONTRACT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID FOR SERVICES PROVIDED HEREUNDER, WHETHER BASED ON NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORIES. CUSTOMER ACKNOWLEDGES THAT THIS PARAGRAPH ALLOCATES THE RISK OF PRODUCT FAILURE BETWEEN THE CONTRACTOR AND CUSTOMER AND THAT THIS ALLOCATION IS REFLECTED IN THE PRICE PAID. NO ACTION ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ON (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
10. DISCLAIMER AND PROJECT COORDINATION – Customer acknowledges and agrees that Contractor provides emergency mitigation, moisture mapping, insurance claim administration, and professional project coordination services. Contractor does not hold a North Carolina General Contractor license. To the extent that any portion of the reconstruction scope of work requires a licensed General Contractor under North Carolina law, Contractor shall not act as the prime builder or licensee. Instead, all such structural, building, or specialized trade work shall be executed by independent, fully licensed, and insured third-party subcontractors or professionals. Any educational or general information offered through Contractor’s website is provided for conceptual purposes only, and specific project metrics shall be governed exclusively by the Order Confirmation.
11. INSURANCE – When required by the local law and authorities the Contractor will purchase and maintain (a) worker's compensation, and (b) insurance for claims for damages, other than to the Work itself, because of bodily injury or destruction of tangible property resulting from Contractor's negligence. The CUSTOMER shall be responsible for purchasing and maintaining the Customer's own liability insurance and at the Customers option, may purchase and maintain such insurance as will protect the Customer against claims which may arise from operations under this Agreement. The Customer shall purchase and maintain property insurance upon the entire Work at the site at the full insurable value thereof.
12. TERMINATION – Contractor may suspend or terminate this Agreement immediately upon written notice if Customer fails to comply with the terms of this Agreement, fails to make payments when due, prevents Contractor from performing the Work, or otherwise materially breaches this Agreement.
Customer may terminate this Agreement at any time by providing written notice to Contractor. Termination of this Agreement shall not relieve Customer of the obligation to pay Contractor for services rendered, work performed, or costs incurred prior to the effective date of termination, as provided in Section 13.
13. PAYMENT FOR SERVICES RENDERED – Beginning on the date this Agreement is executed, Contractor may provide pre-construction services in preparation for the Project, including insurance claim administration, estimating, project planning, and other professional services necessary to facilitate reconstruction.
If the Project does not proceed to completion with Contractor for any reason, including termination by Customer, Contractor, or the selection of another contractor, Customer agrees to compensate Contractor for all services rendered and costs incurred through the date work ceases.
Customer agrees to pay a Pre-Construction Services Fee of $175.00 for each calendar week in which Contractor performs pre-construction services. This fee is intended to compensate Contractor for professional services actually performed and is not a cancellation fee, liquidated damages, or penalty.
The Pre-Construction Services Fee includes, but is not limited to: Property inspections and site visits; Damage assessment and documentation; Measurements, photographs, moisture mapping, and estimating; Scope development and project planning; Insurance communications, negotiations, claim coordination, and supplement preparation; Telephone calls, emails, meetings, scheduling, and administrative services; Material research, procurement preparation, and coordination with subcontractors, suppliers, engineers, consultants, testing companies, or other project professionals; Any other professional services reasonably performed in preparation for reconstruction.
If physical reconstruction has commenced before the Project is terminated, Customer shall also pay for labor performed, materials furnished, subcontractor costs incurred, and all completed work through the date work ceases.
If the Project proceeds to completion with Contractor, the Pre-Construction Services Fee is included within the overall Project and will not be separately invoiced.
14. FINAL COMPLETION AND FINAL PAYMENT – Upon notice by the Contractor, the Customer will promptly make an inspection of the Work and prepare a list of items, if any, to be completed or corrected. On the day of completion of the project, Customer shall review the work for the purpose of compiling exactly one (1) comprehensive punch list of items that need touch-up, correction, or adjustment. Upon completion of the punch list items on that single list, or upon Substantial Completion of the primary scope of work, all remaining funds held by Customer shall be paid immediately to the Contractor. In the event the Customer discovers other items that were overlooked that otherwise would have appeared on the punch list, such items shall be treated strictly as warranty items under Section 9 and shall not be used as a basis to deny, delay, or withhold final payment. The Contractor shall diligently proceed to complete or correct such items within a reasonable timeframe.
Upon substantial completion of the project, the Customer shall pay the Contractor the full final payment of the Contract Price. As set forth in Section 9, any failure by the Customer to remit the final contract balance in full upon substantial completion shall immediately suspend all applicable project warranties. The making of final payment shall constitute a waiver of all claims by the Customer except those arising from: (a) unsettled liens; or (b) faulty or defective work which is subject to the active warranty contained in this Agreement. Unless otherwise expressly specified in the Order Confirmation, the terms of payment shall be net upon receipt from the date of the invoice. If the Customer fails to make payment when due, interest at the rate of one and one-half percent (1.5%) per month (18% per annum) shall be added to all outstanding invoices. In the event that the Customer fails to make payment when due, the Customer agrees to indemnify Contractor and pay Contractor's attorney fees and costs of collection in the amount of fifteen percent (15%) of the total amount due, but in no event less than Three Hundred Fifty Dollars ($350.00). Returned checks will result in a Twenty-five Dollar ($25.00) service fee.
15. DISPUTES – If a dispute arises from or relates to this contract or the breach thereof, and if the dispute cannot be settled through direct discussions, the parties agree and endeavor first to settle the dispute by mediation administered by the American Arbitration Association (“AAA”) under its construction Industry Mediation Procedures before resorting to arbitration. The parties further agree that any unresolved controversy or claim arising out of or relating to this contract, or breach thereof, shall then be settled by arbitration administered by the AAA in accordance with its Construction Industry Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
No arbitration shall include by consolidation, joinder, or in any other manner, parties other than the Customer, the Contractor, and any other person substantially involved in a common question of fact or law, whose presence is required if complete relief is to be accorded through arbitration. The place of arbitration shall be Mecklenburg County, North Carolina. The arbitration shall be governed by the law of the State of North Carolina. The arbitrator(s) shall award to the prevailing party, all their Costs and Fees. “Costs and Fees” shall mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying, telephone, court costs, witness fees, and attorneys’ fees.
16. CUSTOMER CONSENTS – Customer hereby irrevocably gives contractor the right and license to photograph, record or video the worksite and the services provided therein and to edit, use, and reproduce such images, in whole or in part, in print or electronically, for any lawful purpose, on a perpetual and worldwide basis as and to the extent stated herein. Customer agrees that all rights in each photograph, recording, or video taken from the worksite, including all copyrights, are the Contractor’s exclusive property. Nothing contained in this paragraph obligates the Contractor to use or otherwise exercise the rights granted herein. Subject to the provisions of this paragraph, and to the fullest extent permitted by applicable law, Customer hereby waives all claims, demands, losses, and liabilities that it may have against the Contractors or any of its affiliates, agents, and assigns, regarding the Contractor’s authorized and lawful exploitation of the rights described in this paragraph, including claims for copyright infringement, libel, defamation, disparagement, slander, false light, violation of the right of privacy or publicity.
17. INTEGRATION OF PRIOR AGREEMENTS – Any cancellation terms contained in any previous agreement between the parties related to the subject matter hereof shall remain in effect and are expressly incorporated herein by reference.
18. MISCELLANEOUS – All of the terms of this Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto and their successors and assigns. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other terms or provisions of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement. This Agreement shall be construed and enforced in accordance with North Carolina Law. This Agreement represents the entire understanding of the parties hereto, supersedes all other and prior discussions and agreements between the parties hereto and may not be modified or amended, except by a written document designating specifically the terms and provisions modified and amended and signed by the parties hereto.