MASTER RESTORATION GENERAL TERMS AND CONDITIONS OF SERVICE
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.
SERVICES – Contractor shall provide the Services to Customer as described in the Order Confirmation in accordance with these Terms.
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.
CHANGES IN THE WORK – All changes in the work shall be authorized by a written Change Order. 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.
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.
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.
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.
PAYMENT BY CUSTOMER AND ASSIGNMENT OF INSURANCE PROCEEDS – Customer agrees to pay the Contractor the amounts set forth on the Order Confirmation, and any corresponding invoices, at the time and date indicated. Customer irrevocably assigns to Master Restoration any and all proceeds from any insurance check or draft issued in conjunction with the specific services rendered by Master Restoration. Any deductibles, depreciation or other charges if applicable taken by the Customer’s insurance carrier, will be the responsibility of the Customer. The Customer represents that sufficient liquid funds exist to pay the Contract Price and all extra work which may be ordered by the Customer. The Contractor has the right to demand proof of available funds at any time during the project. Failure to provide sufficient proof of funds may result in stoppage of work or termination of this contract.
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. If the Customer fails to make payment when due under this Agreement, then the warranty set forth in this paragraph will terminate and become null and void. 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.
DISCLAIMER – By offering these Services, Contractor is not holding itself out to be a licensed General Contractor or Certified Mold Remediation Specialist. Any information offered through Contractor’s website is general and/or educational content only. Any reliance on the information provided on Contractor’s website or by Contractor in conjunction with the Services is solely at the Customer’s Risk.
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.
TERMINATION – In addition to any remedies that may be provided under this Agreement, Contractor may terminate this Agreement with immediate effect upon written notice to Customer, if Customer:
(a) Fails to pay any amount when due under this Agreement; or
(b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part.
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 one list of items that need touch-up, correction or adjustment. Upon completion of the punch list items on that one list, 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 have appeared on the punch list, such items shall be treated as warranty items and shall not be the basis to deny final payment. The Contractor shall diligently proceed to complete or correct such items as are required under this Agreement. Upon substantial completion, the Customer will pay the contractor the final payment of the Contract Price less a deduction of 100% of the cost of any uncompleted items(s), until completed. Upon final completion, the Customer will pay the Contractor the final payment of the Contract Price. The making of a 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 warranty contained in this Agreement. Unless otherwise expressly specified in the Order Confirmation, the terms of payment shall be net upon receipt from date of invoice. If the Customer fails to make payment when due, interest at the rate of one and one-half percent (1.5%) per month shall be added to all 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 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.
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 Country, 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.
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.