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 warrants to Customer that the Services and work will be free from defects in workmanship from the date of completion of construction, repairs or installation for a period of 3 years of normal use. 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.
9. DISCLAIMER OF WARRANTIES.
ESCEX MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 8(A) AND SECTION 8(B), ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
10. Term, Termination and Survival.
(a) Term. This Agreement will commence on the Effective Date and shall continue thereafter until completion of the Services (the “Term”), unless sooner terminated by in accordance with this Section 10.
(b) Termination for Cause. Either party may terminate this Agreement for cause, effective upon written notice to the other party (the “Defaulting party”), if the Defaulting party:
i. Becomes insolvent or admits its inability to pay its debts generally as they become due.
ii. Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 business days after filing.
iii. Is dissolved or liquidated or takes any corporate action for such purpose.
iv. Makes a general assignment for the benefit of creditors.
v. Has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Termination by Escex.
i. Escex may terminate this Agreement before the expiration date of the Term on written notice if the Customer fails to pay any amount when due hereunder and such failure continues for 14 days after the Customer’s receipt of written notice of nonpayment.
ii. Escex reserves the right to terminate or suspend this Agreement at any time for convenience with a written notice to Customer with the extent and effective date of the termination. In such event, Customer will only be liable to pay Escex for all accepted or completed Services delivered before the date of termination at the pro rata rate. Escex will not be liable for any additional expenses or losses incurred by Customer as a result of the termination.
(d) TERMINATION BY CUSTOMER. CUSTOMER MAY CANCEL THIS CONTRACT AT ANY TIME BEFORE MIDNIGHT ON THE FIFTH BUSINESS DAY AFTER CUSTOMER HAS RECEIVED WRITTEN NOTIFICATION FROM ITS INSURER THAT ALL OR ANY PART OF THE CLAIM OR CONTRACT IS NOT A COVERED LOSS UNDER THE INSURANCE POLICY. THIS RIGHT TO CANCEL IS IN ADDITION TO ANY OTHER RIGHTS OF CANCELLATION WHICH MAY BE FOUND IN STATE OR FEDERAL LAW OR REGULATION. SEE ATTACHED NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT.
(e) The above subsection 10(d) shall only apply in the event that the Customer fees set forth in Section 7 and in the Proposal are derived from or are to be paid from Customer’s insurance proceeds. If Customer is not using insurance proceeds to pay for the Services set forth herein, then the Customer shall have no right of termination pursuant to Subsection 10(d).
(f) Effect of Termination. If the Customer cancels the Services or terminates this Agreement after preparatory expenses were made by the Escex, a Customer shall reimburse those expenses within 7 days after receiving a notice. The expenses shall be reimbursed when reasonably justified and documented.
(g) Survival. The rights and obligations of the parties set forth in Section 10(e) and in Section 7, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
11. Limitation of Liability.
(a) IN NO EVENT SHALL ESCEX BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT ESCEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL ESCEX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO ESCEX PURSUANT TO THIS AGREEMENT.
To the fullest extent permitted by law, Customer shall indemnify, defend and hold harmless Escex and its officers, directors, shareholders, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees, the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers) resulting from any claim of a third party or Escex arising out of or occurring in connection with (a) Customer’s use of the Services or deliverables, (b) Customer’s breach of this Agreement, (c) Customer’s negligence, willful misconduct or breach of this Agreement, or (d) Customer’s violation of any local, state, or Federal law, rule or regulation. . Customer shall not enter into any settlement without Escex’s or Indemnified party’s prior written consent. This indemnification provision shall not apply to claims resulting directly from Escex’s gross negligence or Escex’s breach of this Agreement.
The Customer hereby irrevocably consents to any and all uses and displays, by Escex and its agents, representatives and licensees, of the Services or deliverables provided to Customer in connection with any pictures, photographs, audio and video recordings (including aerial drone videography or photography), digital images, websites, television programs and advertising, other advertising and publicity, sales and marketing brochures, books, magazines, other publications, CDs, DVDs, tapes and all other printed and electronic forms and media throughout the world, at any time during or after the term of this Agreement, for all legitimate commercial and business purposes of Escex (“Permitted Uses”) without further consent from or royalty, payment or other compensation to Customer. Customer hereby forever waives and releases Escex and its directors, officers, employees and agents from any and all claims, actions, damages, losses, costs, expenses and liability of any kind, arising under any legal or equitable theory whatsoever at any time during or after the term of this Agreement by Escex, arising directly or indirectly from Escex’s and its agents’, representatives’ and licensees’ exercise of their rights in connection with any Permitted Uses.
14. Entire Agreement.
This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other party at its address set forth below (or to such other address that the Receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the Receiving Party; and (b) if the party giving the Notice has complied with the requirements of this Section 18.
Notice to Customer: As set forth in the Proposal.
Notice to Escex: Escex Storm Restorations, LLC
ATTN: Nick Barzegar
905 Blackwell Road
Marietta, GA 30066
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party.
No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Escex. Any purported assignment or delegation in violation of this Section 22 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement.
20. Successors and Assigns.
This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
21. No Third-party Beneficiaries.
This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
22. Choice of Law and Forum.
Georgia law applies to this Agreement without regard to any choice-of-law rules that might direct the application of the laws of any other jurisdiction. All disputes arising out of or in connection with this Agreement will be brought in the courts of Cobb County, Georgia or the U.S. District Court for the Northern District of Georgia, and the parties consent to the jurisdiction of such courts.
23. WAIVER OF JURY TRIAL.
EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH party IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. This Agreement may be executed by electronic signature and delivered by electronic transmission.
25. Force Majeure.
Customer understands that due to the nature of Escex’s work, certain circumstances outside of Escex’s control, including inclement weather conditions, may delay Escex’s commencement or provision of the Services. Escex shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Escex including, without limitation, inclement weather, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 30 days, Customer shall be entitled to give notice in writing to Escex to terminate this Agreement.