LAKE LIFE CONSTRUCTION LLC
General Project Terms & Conditions
1. APPLICABILITY. These terms and conditions for services (these "Terms") are the only terms that govern the provision of services by Lake Life Construction LLC ("Contractor") to person who signed the Estimate (the “Client”) who controls the Property described in the Client’s construction proposal (the "Order Confirmation"). The Order Confirmation and these Terms (collectively, this "Agreement") comprise the entire agreement between the Client and Contractor (individually, a "Party", and collectively, the "Parties"), and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Confirmation, these Terms shall govern unless the Order Confirmation expressly states that the terms and conditions of the Order Confirmation shall control. These Terms prevail over any of Client's general terms and conditions regardless of whether or when Client has submitted a request for proposal, order, or such terms. Provision of services to Client does not constitute acceptance of any of Client's terms and conditions and does not serve to modify or amend these Terms.
2. SERVICES. Contractor shall provide all labor, materials, equipment and services necessary for provision of the Services at the Property (the "Services") as described in the Order Confirmation in accordance with these Terms.
3. PERFORMANCE DATES AND CONDITIONS. Contractor shall use reasonable efforts to meet any performance dates specified in the Order Confirmation, and any such dates shall be estimates only. Client and Contractor agree that a typical workday will be defined as Monday through Friday, but Contractor can extend workdays to include Saturday and Sunday at its sole discretion. Contractor will observe all local and Homeowners’ Association rules on time of day construction operations.
4. CLIENT'S OBLIGATIONS. (a) Access. Client shall cooperate with Contractor in all matters relating to the Services and provide such access to Client's Property as may reasonably be requested by Contractor, including but not limited to obtaining written approval of access through adjacent properties where required to access the Property for the purposes of performing the Services, and Client shall respond promptly to any Contractor request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Contractor to access the Property to perform Services in accordance with the requirements of this Agreement. (b) Property Information. The Client shall provide at the Client's expense, upon request, and with reasonable promptness the following, which the Contractor shall be entitled to rely upon for its accuracy and completeness: information describing the physical characteristics of the Property, including surveys; Property evaluations, legal descriptions, data, or drawings depicting existing conditions, subsurface, any available reports and investigations; tests, inspections and other reports dealing with environmental matters, hazardous material and other existing conditions, including structural, mechanical, and chemical tests required by the Agreement or by law; and any other information or services requested in writing by the Contractor that are relevant to the Contractor's provision of the Services and under the Client's control. Legal descriptions shall include easements, title restrictions, boundaries, and zoning restrictions. Property descriptions shall include existing buildings and other construction and all other pertinent Property conditions. Adjacent property descriptions shall include any features relevant to the provision of the Contractor’s Services. Utility details shall include available services, lines at the Worksite and adjacent thereto, and connection points. The information shall include public and private information, subsurface information, grades, contours, and elevations, drainage data, exact locations and dimensions, and benchmarks that can be used by the Contractor in planning the scope of and required materials necessary to perform the Services. Client shall provide such Client materials or information as Contractor may reasonably request to carry out the Services in a timely manner and ensure that such Client materials or information are complete and accurate in all material respects and shall obtain and maintain all necessary licenses and consents, including but not limited to any Home Owner Association ("HOA") regulations and requirements, and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
5. CLIENT'S ACTS OR OMISSIONS. If Contractor's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, Contractor shall not be deemed in breach of its obligations or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. PROPERTY CONDITIONS. If the conditions at the Property are (a) subsurface or other physical conditions which are materially different from those indicated or disclosed in writing by the Client, or (b) unusual and unknown physical conditions which are materially different from conditions ordinarily encountered and generally recognized as inherent in the Services provided for in the Order Confirmation, Contractor shall stop the provision of Services and give prompt written notice of the condition to the Client. Contractor shall not be required to perform any work relating to the unknown condition without the written mutual agreement of the Parties. Any change to the price of Contractor’s Services (the "Contract Price") or in the time required for Services to be provisioned as a result of the unknown condition shall be made by written agreement. In such event, Contractor shall recommend an equitable adjustment in the Contract Price and time required to complete the Services, and the Parties shall in good faith negotiate and agree to any changes in the scope of Services, time period of performance of the Services, and revised Contract Price reflecting the changed scope of the Services which shall be reflected in a change order (a "Change Order").
7. CHANGE ORDERS. If either Party wishes to change the scope or performance of the Services, the Parties shall negotiate and agree on the terms of such change and such changes shall be reflected in a Change Order. Neither Party shall be bound by any Change Order unless mutually agreed upon in writing. Contractor may, from time to time change the Services without the consent of Client provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Order Confirmation. Contractor may charge for the time it spends assessing and documenting a change request from Client on a time and materials basis in accordance with the Order Confirmation.
8. FEES AND EXPENSES; PAYMENT TERMS. In consideration of the provision of the Services set forth in the Order Confirmation (or any applicable change order), Client agrees to pay Contractor progress payments of all amounts due at least 48 hours prior to the payment due date set forth in the Order Confirmation. Contractor’s Services are complete after Contractor’s final cleanup as reasonably necessary from the provision of the Services, and Client’s acceptance of Services shall be implied unless notice is given by Client as provided for in Section 22. Client agrees to reimburse Contractor for all reasonable out-of-pocket expenses incurred by Contractor in connection with the performance of the Services. Client shall make all payments hereunder in US dollars by wire transfer, check, or other such payment method as mutually agreed to by the Parties. In the event payments are not received by Contractor after becoming due, Contractor may suspend performance for all Services until the required progress payment has been made in full. Furthermore, Client agrees to make the progress payments defined in the Order Confirmation on this contract ontime even if repairs to completed work under the Order Confirmation or any applicable change order may have not yet been performed completed.
9. ALLOWANCES. All allowances stated in the Order Confirmation shall be included in the Contract Price on the Order Confirmation. While the Client may direct the amounts of, and particular material suppliers or subcontractors for, specific allowance items, if the Contractor reasonably objects to a material supplier or subcontractor, it shall not be required to contract with them. If applicable, the Client shall select allowance items in a timely manner so as not to delay provision of the Services. Allowances shall include the costs of materials and equipment delivered to the Property less applicable trade discounts and including requisite taxes, unloading and handling at the Property, and labor and installation, unless specifically stated otherwise. The Contractor's overhead and profit for the allowances shall be included in the Contract Price reflected on the Order Confirmation, but not in the allowances. The Contract Price shall be adjusted by Change Order to reflect the actual costs when they are greater than or less than the allowances.
10. TAXES. Client shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder.
11. REPRESENTATION AND WARRANTY. Contractor provides no warranty as to any equipment and accessories installed; equipment and accessories installed by Contractor may have a manufacturer warranty, but Contractor neither provides a warranty related to any equipment or accessory nor guarantees that any equipment or accessories have a manufacturer warranty or that a manufacturer will honor any manufacturer provided warranty. Contractor represents and warrants to Client 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 shall devote adequate resources to meet its obligations under this Agreement. The Contractor shall not be liable for a breach of the warranty unless Client gives written notice of the defective Services, reasonably described, to Contractor within thirty (30) days of the time when Client discovers or ought to have discovered that the Services were defective. Contractor shall, in its sole discretion, either repair or re-perform such Services (or the defective part); or credit or refund the Contract Price of such Services at the pro rata contract rate. THE REMEDIES SET FORTH SHALL BE THE CLIENT'S SOLE AND EXCLUSIVE REMEDY AND THE CONTRACTOR'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11. NOTWITHSTANDING THE FORGOING, THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT WILL BE DEEMED NOT TO BE PROVIDED BY THE CONTRACTOR IF ANY INVOICED AMOUNTS ARE UNPAID.
12. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11, CONTRACTOR MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
13. LIMITATION OF LIABILITY. IN NO EVENT SHALL CONTRACTOR BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, 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 DAMAGES WERE FORESEEABLE AND WHETHER OR NOT CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL CONTRACTOR'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 CONTRACTOR PURSUANT TO THE APPLICABLE ORDER CONFIRMATION. The limitation of liability set forth above shall not apply to (i) liability resulting from Contractor's gross negligence or willful misconduct and (ii) death or bodily injury resulting from Contractor's negligent acts or omissions.
14. CLIENT INDEMNITY. To the fullest extent permitted by law, the Client shall indemnify and hold harmless the Contractor, its officers, directors, or members, subcontractors, or anyone employed directly or indirectly by any of them or anyone for whose acts any of them may be liable from all claims for bodily injury and property damage, including reasonable attorneys' fees, costs, and expenses, that may arise from any work at the Property by the Client, or others retained by the Client.
15. INSURANCE. During the term of this Agreement, Contractor shall, at its own expense, maintain and carry insurance in full force and effect which includes the following: commercial general insurance in a sum no less than $1,000,000 per occurrence and a $2,000,000 general aggregate; employers' liability insurance which shall include $1,000,000 bodily injury by accident per accident; $1,000,000 bodily injury by disease policy limit, and $1,000,000 bodily injury by disease per employee. Client shall procure and maintain insurance against loss of use of the Client's Property caused by fire or other casualty loss. The Client shall either self-insure or obtain and maintain its own liability insurance for protection against claims arising out of the performance of this Agreement, including without limitation, loss of use and claims, losses and expenses arising out of the Client's errors or omissions. Upon Contractor's request, Client shall provide Contractor with a certificate of insurance from Client's insurer evidencing the insurance coverage for the Property.
16. 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 Client, if Client fails to pay any amount when due under this Agreement and/or Client has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or Client becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
17. WAIVER. No waiver by Contractor of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Contractor. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
18. FORCE MAJEURE. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Client to make payments to Contractor hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the Parties’ reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) strikes, labor stoppages, or slowdowns or other industrial disturbances; and (g) telecommunication breakdowns, power outages or shortages, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials. The impacted Party shall give notice within five (5) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the impacted Party's failure or delay remains uncured for a period of sixty (60) consecutive days following written notice given by it under this Section 17, either Party may thereafter terminate this Agreement upon ten (10) days' written notice.
19. ASSIGNMENT. Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Contractor. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
20. RELATIONSHIP OF THE PARTIES. 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.
21. GOVERNING LAW. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Texas.
22. NOTICES. All notices, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the Parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving Party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), email with receipt verified by recipient, 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) upon receipt of the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.