Parties. The terms and conditions set forth herein (“Agreement”) will govern the purchase of labor, materials, and services from Need Roof Guys, Inc. (“Contractor”) by the customer (“Customer”) as set forth below and on the Proposal attached hereto as Exhibit “A” and incorporated herein and agreed to and entered into by Contractor and Customer (collectively referred to as “the Parties”).
Nature of Work. Need Roof Guys, Inc. (“Contractor”) shall furnish the labor and material to perform the work described herein or in the referenced Proposal or invoice (“Services”). Contractor does not provide design, engineering, consulting or architectural services. It is the Owner’s responsibility to retain a licensed architect or engineer to determine proper design and code compliance, including a determination as to whether and what type of a vapor or air retarder is needed. If plans, specifications or other design documents have been furnished to Contractor, Customer warrants that they are sufficient and conform to all applicable laws and building codes. Contractor is not responsible for any loss, damage or expense due to defects in plans or specifications or building code violations unless such damage results from a deviation by Contractor from what is specified. Contractor is not responsible for condensation, moisture migration from the building interior, roof deck or other building components, location or size of roof drains, adequacy of drainage, ponding on the roof, structural conditions or the properties of the roof deck or substrate on which Contractor’s roofing work is installed.
Payment. Upon the completion of Services, Contractor will provide Customer with an Invoice. Customer agrees to pay the full Service Cost for all Services purchased from Contractor pursuant to the terms of this Agreement and as shown on the Proposal and the Invoice. Payment for any and all Services purchased will be made by check, cash, credit card, or wire transfer within thirty (30) days of the completion of Services (the “Due Date”). Financing charges may apply. If Customer uses a credit card as its payment method, an additional 3.5% of the payment amount will be added to the payment. In the event Customer fails to pay in full by the Due Date, the outstanding balance will be subject to a late fee equal to 1.5% for each month the outstanding balance remains unpaid (calculated as 18% per annum). All payments received will be applied first to any late fees and/or interest and thereafter to the cost of the Services. If Customer is unsatisfied with the completed work, Customer agrees not to withhold final payment, except Customer may withhold up to, but not exceeding, 10% of the purchase price until the dispute is resolved in accordance with Section 18.
Acceptance of Orders. Contractor reserves the right to sell or not sell its Services to Customer. Orders are subject to acceptance by Contractor. Signing this Agreement and/or accepting the Services shall constitute acceptance of this Agreement by Customer. Notwithstanding the above, Customer may cancel this Agreement prior to midnight on the third business day following the date of Customer’s acceptance of this Agreement.
Prices. All prices for Services will be determined by Contractor and are subject to change or withdrawal by Contractor without notice. All prices for Services will be set forth on Contractor’s Proposal and will be binding upon Customer. Customer hereby expressly grants Contractor permission to fax and/or email prices for Services to the fax number and email address set forth below. All prices are exclusive of all city, state, and federal sales and excise taxes, including, without limitation, taxes on sales, receipts, or use.
Taxes. Customer will promptly pay Contractor any taxes which Contractor may be required to pay or collect upon the sale, delivery, storage, processing, use, and/or consumption of any of the Services.
Performance. Contractor will deliver and complete Services ordered by Customer to the location(s) specified by Customer, and Customer’s order is subject to this Agreement. Delivery dates of Services are not guaranteed and Contractor will not be held responsible for any delay in performance or delivery, regardless of cause. Customer further agrees that Contractor’s invoice will be conclusive of Contractor’s actual delivery and Customer’s receipt and acceptance of all Services indicated on the invoice unless Customer objects in writing within ten (10) days of the date of the invoice. Notwithstanding the foregoing, however, Contractor’s failure to reflect any sale, transaction, provision of service or credit to Customer will not limit or otherwise affect Contractor’s ability to adjust Customer’s account balance to correct any mistakes
Default. Upon Customer’s default under any term or condition of this Agreement, including without limitation Customer’s payment obligations or insolvency as determined in the sole discretion of Contractor, and then Contractor may, at its option, stop completion of the Services until paid in cash, in full.
Recovery of Legal Fees and Costs. In the event it becomes necessary for Contractor to file a lawsuit to enforce the terms of this Agreement, or to collect any unpaid balance due to Contractor by Customer, and Contractor is granted a judgment wholly or partly in its favor, Contractor will be entitled to recover, in addition to all other remedies or damages, reasonable attorney’s fees, paralegal fees, expert fees, and court costs incurred in such lawsuit and for all proceedings brought and actions taken to collect on said judgment, to the fullest extent permitted by law, if at all.
Excess Costs. If at any time the Services require extra costs above the cost specified or estimated in the Residential Contract that were reasonably unforeseen, but necessary, and the total of all extra costs to date exceeds five thousand dollars ($5,000) over the course of the entire completion of the Services, the Customer shall have a right to an estimate of those excess costs before the Contractor or assignee begins Services related to those costs. Prior to the Customer’s acceptance of any Services related to an excess cost, Contractor will disclose to the Customer that if the Customer fails to approve an excess cost, completion of the work may not be possible and a charge may be imposed for any disassembly, reassembly, or partially completed work, which shall be directly related to the actual labor or parts involved.
Cancellation. Except as otherwise stated in the Residential Contract or in this Agreement, the Residential Contract is not subject to cancellation or holdup on delivery or completion of Services except with Contractor’s written consent, and only upon such terms agreed to by Contractor that will compensate Contractor for its loss from such cancellation or holdup on delivery or completion of Services.
Non-Assignment. Customer may not assign or delegate its obligations under the Residential Contract or under this Agreement without Contractor's prior written consent; however, Contractor may assign or subcontract its obligations under the Residential Contract or under this Agreement without Customer’s consent.
Force Majeure. Contractor will not be responsible for any acts or omissions of the Customer. Neither party will be responsible for any acts or omissions of the other party, nor for events beyond its reasonable control (hereinafter referred to as “Force Majeure”), including, but not limited to, Acts of God, changes of laws or regulations or other acts of government, labor disputes, strikes, riots, mobs, fires, floods, wars, embargoes, impossibility to obtain necessary material, labor, machinery, or transportation.
Disclaimer. Contractor will not be responsible for any damage or injury resulting to or caused by its sale or completion of Services hereunder, including without limitation, any delays or losses, unless such damage or injury is caused by the willful misconduct of Contractor or unless otherwise provided in this Agreement. Furthermore, Contractor will not be responsible for any damage or injury resulting to or caused by the completion, installation, storage, or use of the Services by Customer, including without limitation, that Contractor will not be liable for any damages that Contractor, its agents, or subcontractors cause to Customer’s driveways, walkways, patios, and other similar areas, whether concrete or otherwise, even if the party causing the damage was negligent
Governing Law. This Agreement will be interpreted under the laws of Ohio and the parties stipulate that this Agreement came into existence, and was entered into, in Butler County, Ohio. The parties agree that any lawsuits relating to or arising out of this Agreement, the Collateral, or the Services, including but not limited to, claims for personal injury, negligence, intentional torts, or breach of contract will be brought only in Butler County, Ohio.
Limitation of Damages. IN NO EVENT WILL CONTRACTOR BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT OR THE SERVICES PROVIDED BY CONTRACTOR EVEN IF CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR CLAIM. IN NO EVENT WILL THE AGGREGATE LIABILITY OF CONTRACTOR FOR ANY DAMAGES OR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, OR THE COLLATERAL, WHETHER IN CONTRACT, TORT, NEGLIGENCE, GROSS NEGLIGENCE, RECKLESSNESS, OR OTHERWISE, EXCEED THE TOTAL AMOUNT CUSTOMER HAS PAID CONTRACTOR FOR THE SERVICES. Customer’s sole remedy will be repair, replacement, or a refund, as determined in the sole discretion of Contractor.
Indemnification by Customer. Customer covenants and agrees at all times to defend, hold harmless, and indemnify Contractor, its directors, shareholders, officers, employees, representatives, agents, successors, and assigns from and against any and all claims, actions, lawsuits, judgments, losses, damages, liabilities, costs, and expenses, including attorney’s fees, related expenses and any amounts paid in the defense or settlement, arising out of or in connection with any act or omission of Customer or any of its agents, employees, representatives, successors and assigns, the use of the products and services by Customer, or any other party, or as a result of Customer's breach of this Agreement. Customer further agrees to take upon itself the settlement of such claims in the defense of any suit, suits, or legal proceedings of any kind brought to enforce such claim or claims, and to pay all judgments entered in such suit, suits, or legal proceedings, and all costs of attorney's fees or other expenses. Customer agrees that in any instance where such claims in any way affect Contractor’s interest hereunder or otherwise, Customer shall not consummate any settlement without Contractor’s prior written consent. Customer covenants of indemnity herein shall continue in full force and effect notwithstanding any termination or expiration.
Warranty. Except as otherwise stated in the Residential Contract, Contractor warrants that it will repair or replace, at its election, any Services manufactured, sold, installed or completed by it that proves to be caused by defective workmanship within a period of three hundred and sixty (360) days from the date of original purchase or completion. This warranty covers normal use and does not cover damage or defect resulting from alteration, accident, neglect, improper installation, improper design, settlement or structural movement and/or movement of materials to which installed products are attached, incidents under Paragraph 15 of this Agreement, lack of protection during application, operation, or maintenance, and any cause other than workmanship defects attributable to Contractor or assignee. The obligation of Contractor in this Paragraph 19 is limited to the repair or replacement of the defective Services. Any components not manufactured by Contractor, but used as part of any Services sold by it will be warranted under the terms of the original manufacturer of the subject component, and not by Contractor. EXCEPT AS SET FORTH HEREIN, CONTRACTOR MAKES NO REPRESENTATIONS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF WORKMANSHIP, OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, IN CONNECTION WITH THE SALE OF SERVICES HEREUNDER, AND HEREBY DISCLAIMS THE SAME.
Arbitration. The Parties agree that any claim, dispute or cause of action, of any nature, including but not limited to, those arising in tort, contract, statute, equity, law, fraud, intentional tort, breach of statute, ordinance, regulation, code, or other law, or by gross or reckless negligence, arising out of or related to, the negotiations of the Agreement, the Services provided, the performance or non-performance of the Agreement or any interaction of Customer and Contractor, its agents, or subcontractors, shall be subject to final and binding arbitration by an arbitrator appointed by the American Arbitration Association in accordance with the Construction Industry Rules of the American Arbitration Association and judgment may be entered on the award in a court of appropriate venue. Further, the Emergency Measures of Protection Rules shall be applicable. Each party shall be responsible for one-half of the arbitrator’s fees. The arbitration proceeding will include all parties to the construction process who have signed any document incorporating or referring to this Agreement. The arbitrator(s) shall determine all issues regarding the arbitrability of the dispute. The powers of the arbitrator(s) shall include all legal and equitable remedies, including but not limited to, money damages, declaratory relief, and injunctive relief. Should any party refuse or neglect to appear at and participate in arbitration proceedings after due notice, the arbitrator will make an award based on evidence introduced by the parties who do appear and participate. The parties understand that by agreeing to binding arbitration they are agreeing to arbitrate and not litigate their disputes and are giving up their right to a trial by jury, and to have a trial before a judge, or to seek remedies from a court. Collection matters will be handled through litigation or arbitration at the sole discretion of Contractor.
Miscellaneous. The terms and conditions as set forth herein, as amended from time to time, will be binding upon and inure to the benefit of the parties, their successors, heirs, executors, representatives, and assigns. This Agreement states the entire agreement between the parties and neither party will be bound by any stipulations, representations, agreement, or promises, oral or otherwise, not contained in this Agreement. This Agreement, in conjunction with the Residential Contract, supersedes all previous agreements between the parties, either oral or in writing, and may be amended only in a writing signed by both parties. If any term or provision of this Agreement is held to be invalid, void, or unenforceable, the remainder of the Agreement will remain in full force and effect and will in no way be affected, impaired, or invalidated, and this Agreement will be construed as if the invalid, void, or unenforceable provisions were omitted. In no event will Customer’s purchase order or other documents modify the terms and conditions of this Agreement, whether any such terms conflict, supplement, do not conflict, or add to this Agreement, and any such terms will be considered material deviations from this Agreement. Any waiver or failure of Contractor to require strict compliance with the provisions of this Agreement in any respect will not be deemed a waiver of Contractor’s right to insist upon strict compliance in other respects or thereafter in the same respect. All remedies provided to Contractor are in addition to its rights at law. No action or suit to enforce Customer’s rights or remedies arising from any purchase of Services by Customer will be commenced more than one year from the date of completion of the applicable Services.