Owner hereby assigns any and all insurance rights, benefits, proceeds and any causes of action under any applicable insurance policies to Contractor for the Services. By executing this Agreement, Owner acknowledges and agrees that all rights to payment for the Services are hereby assigned solely and exclusively to the Company. This assignment is being made as consideration for the Contractor’s agreement to perform the Services without requirement of prepayment. Owner hereby directs the Insurance Carrier to release any information requested by Contractor relevant to the Services and to pay Contractor directly for the Services.
Insurance Allowance Agreement and Proceeds:
Without limiting the foregoing, Owner empowers Contractor to engage directly with the Insurance Carrier and meet with its representative in order to negotiate the amount of damage and the cost of the work to be performed on the Property. If an insurer disburses funds to Owner, those funds shall be held in trust specifically for the payment of Contractor. Contractor reserves the right to file for supplemental claims resulting from unforeseen circumstances or concealed conditions, increases in labor or material costs or due to an insurance adjuster’s errors, omissions or improper quote.
Break Fee:
Contractor shall assist Owner in submitting, processing, negotiating and settling claims with Owner’s Insurance Carrier for damage to Owner’s roof. If Owner chooses not to have Contractor perform the Services, Owner shall pay Contractor 30% of the total amount approved by the Insurance Carrier, including any supplemental claims, as consideration for Contractor’s assistance with the claim.
Cooperation:
Owner hereby agrees: (i) to fully cooperate with Contractor in Contractor’s efforts to negotiate with the Insurance Carrier; (ii) to provide complete and accurate information in order to assist Contractor in its efforts; (iii) to continually provide information should additional information become known to Owner that is relevant to this Agreement; and (iv) to allow Contractor to file supplemental insurance claims due to incorrect measurements, and due to material and labor price increases.
PAYMENT DEFAULTS:
SHOULD DEFAULT BE MADE IN PAYMENT OF THIS AGREEMENT, CHARGES SHALL BE ADDED FROM THE DATE THEREOF AT A RATE OF ONE AND ONE-HALF (1-1/2) PERCENT PER MONTH (18% PER ANNUM), AND IF PLACED IN THE HANDS OF AN ATTORNEY OR COLLECTION AGENCY FOR COLLECTION, ALL SUCH LEGAL, COLLECTION AND FILING FEES SHALL BE PAID BY OWNER.
Limited Warranty; Liability Exclusions
Limited Warranty:
Contractor hereby provides a limited warranty to Owner that the Services will be performed in a professional and workmanlike manner and consistently with the generally accepted standards in the industry (the “Services Warranty”). The Services Warranty shall be valid for the expected life of the materials after the completion of the Services. In order to make a claim under the Services Warranty, Owner shall notify Contractor of any deficiency within ten calendar days of discovery, after which Contractor shall have the right to inspect the Property without limitation. In the event of Contractor’s breach of the Services Warranty, Contractor’s sole and exclusive obligation, and Owner’s sole and exclusive remedy shall be, in respect of the Services, for Contractor to re-perform the Services at Contractor’s cost.
NO OTHER WARRANTY:
CONTRACTOR HEREBY DISCLAIMS ALL WARRANTIES EXCEPT AS EXPRESSLY PROVIDED HEREIN, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY WARRANTIES ON THE PRODUCTS USED IN CONNECTION WITH THE SERVICES ARE THOSE OF THE MANUFACTURER OF SUCH PRODUCTS, AND CONTRACTOR DOES NOT ASSUME, NOR AUTHORIZE ANY THIRD PARTY TO ASSUME ANY LIABILITY IN CONNECTION WITH SUCH PRODUCTS.
LIABILITY LIMITATION:
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE MAXIMUM AMOUNT OF LIABILITY OF CONTRACTOR IN RESPECT OF THIS AGREEMENT AND THE SERVICES SHALL IN NO EVENT EXCEED THE ACTUAL AMOUNT PAID TO CONTRACTOR THE SERVICES, WHICH OWNER AGREES IS A REASONABLE LIQUIDATED DAMAGE SUM FOR ANY DEFAULT OF CONTRACTOR OF THIS AGREEMENT. HOMEOWNER SHALL NOT BE ENTITLED TO RECOVER FROM COMPANY ANY PUNITIVE DAMGES, CONSEQUENTIAL DAMAGES, DAMAGES TO PERSON OR PROPERTY, DAMAGES FOR LOSS OF USE, LOSS OF TIME, LOSS OF PROJECTS OR INCOME, OR ANY OTHER INCIDENTAL DAMAGES.
Liability Exclusions:
Contractor shall not assume or be held liable for any damages to personal property or physical injury as a result of vibrations caused during the execution of the work described in this Agreement. Contractor will make reasonable efforts to protect the Property from any further damages; provided, however, that Contractor shall not be held liable for wear and tear to driveways, parking lots, walkways, lawns, shrubs, or other floral or vegetation caused by truck, equipment, materials, work force or debris. Contractor and its insurers shall be held harmless for alleged or actual damages/claims as a result of mold, algae or fungus. Contractor and its insurers shall exclude all coverage, including defense, damages related to bodily injury, property damage and clean-up directly or indirectly in whole or in part for any action brought by mold, including fungus and mildew, regardless of the cost, event, material, product or workmanship that may have contributed concurrently or in any sequence to the injury or damage that occurs. Contractor shall have no responsibility or liability for damages caused by rain, fire, tornado, windstorm or other perils as normally contemplated and/or covered by homeowner insurance. Contractor is not responsible for any interior damage incurred on the Property unless caused by the gross negligence of Contractor. Owner agrees to take precautions to safeguard any roof equipment or fixtures, such as solar panels or satellite dishes, prior to commencement of the Services, and Contractor shall not assume responsibility for damages to such equipment or fixtures. Contractor is not responsible for damage to any solar panels. Contractor is not responsible and shall not be held liable for any pre-existing construction deficiencies, whether known or unknown.
General Terms and Conditions
LIENS:
ANY PERSON OR COMPANY SUPPLYING LABOR AND/OR MATERIAL FOR THIS IMPROVEMENT TO CUSTOMER’S PROPERTY MAY FILE A LIEN AGAINST CUSTOMER’S PROPERTY IF THAT PERSON OR COMPANY IS NOT PAID FOR THEIR CONTRIBUTIONS.
Governing Law:
This Agreement shall be governed by the laws of the State of Virginia without reference to conflict of law provisions.
ARBITRATION:
THE PARTIES HEREBY CONSENT TO THE RESOLUTION BY ARBITRATION OF ALL DISPUTES, ISSUES, CLAIMS OR CONTROVERSIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT ADMINISTERED IN ACCORDANCE WITH THE THEN-CURRENT MODEL ARBITRATION PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) BEFORE A SINGLE ARBITRATOR WHO IS LICENSED TO PRACTICE LAW IN THE STATE IN WHICH THE ARBITRATION IS CONVENED. EXCEPT AS OTHERWISE PROVIDED HEREIN OR BY MUTUAL AGREEMENT OF THE PARTIES, ANY ARBITRATION SHALL BE HELD IN LOUDOUN COUNTY, VIRGINIA.
Death or Disability of Owner:
Contractor’s performance under this Agreement shall be excused in the event of fire, explosion, flood, severe weather, accident, strike, governmental act, embargo, shortages of materials, computer system failure, war or military action, riot, civil disturbance or any other event beyond the control of Contractor or which materially affects the economic basis of the bargain. Contractor’s performance in the event of a force majeure shall be excused for as long as the cause continues, without liability. If the force majeure continues unabated for ninety (90) consecutive days, Contractor may, at its option, cancel this Agreement without liability.
In the event of the death or disability of Owner, the estate of Owner shall continue to be jointly and severally liable to Contractor in respect of the payment of fees for any Services completed by Contractor prior to such event. Upon receipt of notice of such event, Contractor shall cease all continued Services unless and until a separate work authorization is executed by the estate of Owner in respect of the Property.
Force Majeure:
Death or Disability of Owner: Contractor’s performance under this Agreement shall be excused in the event of fire, explosion, flood, severe weather, accident, strike, governmental act, embargo, shortages of materials, computer system failure, war or military action, riot, civil disturbance or any other event beyond the control of Contractor or which materially affects the economic basis of the bargain. Contractor’s performance in the event of a force majeure shall be excused for as long as the cause continues, without liability. If the force majeure continues unabated for ninety (90) consecutive days, Contractor may, at its option, cancel this Agreement without liability.
In the event of the death or disability of Owner, the estate of Owner shall continue to be jointly and severally liable to Contractor in respect of the payment of fees for any Services completed by Contractor prior to such event. Upon receipt of notice of such event, Contractor shall cease all continued Services unless and until a separate work authorization is executed by the estate of Owner in respect of the Property.
Interpretation; Construction:
For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Scope of Work or Change Orders referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. 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 term or
Entire Agreement:
This Agreement, together with the Scope of Work, any Change Orders and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter
Assignment:
Neither party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party; provided, that, upon prior written notice to the Owner, Contractor may assign the Agreement to any affiliate or to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation, or acquisition. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Third Party Beneficiaries:
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
Amendment:
Other than as expressly set forth herein with respect to Change Orders or other modifications to the Scope of Work, this Agreement may be amended, modified, or supplemented only by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof 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 rights, 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.
Counterparts; Electronic Delivery:
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement signed copy of this Agreement.
