These Terms and Conditions of Service (these “Terms”) are made and entered into by and between Escex Storm Restorations, LLC, a Georgia limited liability company (“Escex”), and the Customer, as identified in the accompanying services proposal (the “Proposal”). These Terms become binding on the parties as of the date the Proposal is signed by the Customer or on the date that Escex commences the Services, whichever is earlier (the “Effective Date”). In consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledges, the parties agree as follows:
(a) Escex’s quotation, Proposal, invoice, pre-construction checklist, scope of work, and these Terms (collectively, this “Agreement”) are the only terms that govern the provision of residential roofing, siding, repair, gutter, light remodeling and interior construction services by Escex and comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of the Customer’s general terms and condition regardless of whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order for services does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
(b) Notwithstanding anything to the contrary contained in this Agreement, Escex may, from time to time, change the Services (as defined below and more particularly described in the Proposal) without the consent of Customer provided such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Proposal.
Escex shall provide to Customer the services (the “Services”) set out in one or more Proposals to be issued by Customer and accepted by Escex (each, a “Proposal”). Additional Proposals shall be deemed issued and accepted only if signed by either Nick Barzegar or Adam Humphreys of Escex. Escex may engaged sub-agents, independent contractors or other persons (“Sub-Agents”) to act on Escex’s behalf or to otherwise perform any of Escex’s obligations under the Agreement; provided that any compensation to Sub-Agents shall be solely Escex’s responsibility.
3. Performance Dates.
Escex shall use reasonable efforts to meet any performance dates, if any, specified in the Proposal. Customer understands and agrees that any performance dates will be estimates only and that Escex shall not be liable and shall not be in breach of the Agreement for any failure to meet any estimated performance dates.
4. Customer’s Obligations.
Customer agrees (a) to cooperate with Escex in all matters relating to the Services and provide such access to Customer’s premises and other facilities, including access and use of restrooms, as may reasonably be requested by Escex for the purposes of performing the Services; (b) to respond promptly to any Escex request to provide direction, information, approvals, authorizations, decisions, records or other documents that are reasonably necessary for Escex to perform the Services in accordance with the requirements of this Agreement; (c) to provide such materials or information as Escex may request to carry out the Services in a timely manner and ensure that such materials or information are complete and accurate in all material respects; (d) secure all pets during commencement of the work; and (e) Follow all instructions and recommendations provided by Escex that are necessary for the satisfactory provision and completion of Services.
5. Customer’s Acts or Omissions.
If Escex’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Escex shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. Change Orders.
Customer may request Escex to perform services or provide materials which are not set forth in the Proposal. Escex agrees to perform such additional work so long as prior to the performance of such additional work, Customer shall authorize in writing the scope of such additional work and compensation payable to Escex for the full performance of said additional work. Unless otherwise set forth in such a Change Order signed by Escex, Customer understands and agrees that the fee for any additional work shall include the costs of the additional work plus an additional thirty percent (30%). Escex may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the Proposal. Notwithstanding the above, Escex may also, from time to time, change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, the fees, or any performance dates set forth in the Proposal. Any additional services or work, including additional services or work not specifically set forth in a written Change Order or in any additional proposals, shall be at Customer’s additional expense. Customer agrees that if, prior to or during Escex’s provision of the Services, Escex discovers any defects in previous construction performed by a third party, then the parties shall execute a Change Order describing the additional work to be performed and the costs of any such additional work.
7. Payment Terms.
(a) Fee. In consideration of the provision of the Services by Escex and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Proposal. Additional amounts or fees will be required for any additional work, tasks or services requested outside of the scope of work described in the Proposal, or for any additional damage found or discovered during the provision of the Services or following the execution of the Proposal.
(b) Down Payment. Unless otherwise set forth in the Proposal, Customer shall pay 40% of the total fee as a down payment for the Services prior to the commencement of the work. Upon completion, Customer shall pay the remaining 60% of the total fee upon completion of the work, in accordance with the invoice procedures in this Section 7. Customer understand and agrees that Escex may, without any liability to Escex, suspend or delay commencement of the work if Customer fails to pay the 40% down payment set forth herein.
(c) Expenses. Customer understands that the price quoted in the Proposal generally includes reimbursable expenses incurred by Escex, such as travel, courier expenses, copying, binding, and printing, unless stated otherwise. However, if Escex incurs expenses or other losses that it does not anticipate, such as travel cancellation fees resulting from Customer’s rescheduling or cancellation of a site visit, Escex has the right to seek additional reimbursement from Customer for such expenses. Likewise, if Escex purchases any specific items at the request of Customer, Customer agrees to promptly reimburse Escex for the cost of such items.
(d) Invoicing. All fees are due and payable immediately upon receipt of Escex’s invoice. Customer will make all payments hereunder in US dollars by cash, check, or credit card. Except for emergency services provided to Customer, if the fees paid by Customer are covered by insurance proceeds, Customer shall not be required to make payment to Escex until the five-day cancellation period set forth in Section 10(d) has expired. For emergency services provided to Customer (i.e. services necessary to prevent damage), the fees payable by Customer shall be due upon receipt of the Escex’s invoice.
(e) Unpaid Fees and Expenses. In the event that any one of Escex’s invoices remain unpaid for fifteen (15) days or more after becoming due, then Escex may (i) charge interest on such unpaid amounts at a rate of one and half percent (1.5%) per month or, if lower, the maximum amount permitted by applicable law, from the date such payment was due until the date paid; and (ii) suspend performance for all Services until payment has been made in full. Furthermore, Customer agrees to pay all collection costs, including reasonable attorneys’ fees and litigation costs, for collection of any unpaid fees or expenses. Customer further agrees to notify Escex in writing or by email within five (5) days of receiving an invoice if Customer disputes any expense or fee entry on that invoice. In the absence of any such written objections within five (5) days, Customer will be deemed to have accepted and acknowledged the invoice as correct. In the event that any one of Customer’s checks bounce or are returned for insufficient funds, Customer agrees to pay an additional $25.00 fee for each bounced or returned check, in addition to any other charges or fees set forth herein.
8. Limited Warranties.
(a) Escex warrants that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligation under this Agreement.
(b) Escex offers a 3 year Workmanship warranty but is subject to certain terms and agreements. This workmanship warranty does not include any damages or defects in the above-described work or Services except to the extent solely caused by Escex’s installation or construction. Escex will have the right to inspect the areas at issue to determine the cause of the alleged defects. If the defects are determined, in Escex’s sole discretion, to be within the scope of the workmanship warranty, Escex will make the necessary repairs at Escex’s expense in accordance with Section 8(d) below. Escex specifically does not warrant and components, parts or other third party or manufactured products that are used within the installation, construction or repair services. This warranty does not cover damage or defects resulting from or in any way attributable to (i) neglect, (ii) misuse, (iii) abuse, (iv) repair or alteration made by anyone other than Escex (v) settlement or structural movement and/or movement of materials to which roof installations or installed products are attached, (vi) damage from incorrect design of the structure, (vii) acts of God including, but not limited to, hurricanes, tornados, floods, earthquakes, severe weather or natural phenomena, (including, but not limited to, unusual climate conditions), (viii) lack of proper maintenance, (ix) any cause other than workmanship defects attributable to Escex.
(c) Escex shall not be liable for a breach of the warranties set forth in Section 8(a) and Section 8(b) unless Customer gives written notice of the defective Services, reasonably described, to Escex within five (5) days of the time when Customer discover or ought to have discovered that the Services were defective.
(d) Subject to Section 8(c), Escex shall in its sole discretion either (i) repair or re-perform such Services (or the defective part); or (ii) credit or refund the price of such Services at the pro rata contract rate.
(e) THE REMEDIES SET FORTH IN SECTION 8(d) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND CONTENTPARK’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8(A) AND SECTION 8(B). AND REPAIRS MADE BY ESCEX PURUSUANT TO SECTION 8(D) SHALL CONSTITUTE A FULL SETTLEMENT AND RELEASE OF ALL CLAIMS OF ANY COVERED PERSON/ENTITY FOR DAMAGES OR OTHER RELIEF AND SHALL BE A COMPLETE BAR TO ANY LITIGATION FILED SUBSEQUENTLY TO THE COVERED PERSON/ENTITY’S ACCEPTANCE OF SUCH AN AGREEMENT.