Standard Terms and Conditions for Fence Installation Services — Griffin Fence, Houston, TX
These Standard Terms and Conditions for Fence Installation Services, together with the Client Quote make up your agreement (the "Agreement") by and between Singh Safran Inc, a Corporation duly incorporated under the laws of Texas, D/B/A Griffin Fence, with principal place of business at 6307 Brittmore Road, Houston, Texas 77041 (the "Provider"), and the client as identified on the Quote (the "Client"). The Provider and the Client may be referred to collectively as the "Parties" or individually as a "Party".
The Service Address (hereinafter the "Premises") will be that stipulated on the Quote (hereinafter the "Quote"), and the work to be performed will be done so in accordance with the written terms and specifications of this Agreement (hereinafter, the "Work").
The Quote, incorporated by reference, includes:
Client acknowledges and confirms that:
Provider shall furnish the services and material for performance of the Work on the Premises described on the Quote (signed by Client and Provider) and numbered as Job # accordingly, each attached to and made a part of this Agreement, for and in consideration of the payment to Provider by the Client with any amounts set forth in any addenda hereto (hereinafter the "Total Agreement Sum").
The Total Agreement Sum shall be paid to Provider as established in the QUOTE attached.
Modification to the Work or Agreement will be made only when a written addendum is made after the initial Quote, and describing such modification has been signed by both Client and Provider. There may be an additional charge for any changes.
In no event shall Provider be liable to the Client or any third party for any indirect, consequential, incidental, or special damages (including but not limited to lost profits, lost business opportunities, or costs of replacement services) arising out of or in connection with this Agreement, except in cases of gross negligence or willful misconduct. This limitation shall not apply to damages for personal injury or death caused by Provider's negligence, or to damages for diminution in property value caused by Provider's breach of express warranties or failure to comply with applicable building codes.
Provider's total aggregate liability under this Agreement, whether in contract, tort, or otherwise, shall not exceed the total amount paid by the Client to Provider for the specific services giving rise to the claim in the twelve (12) months immediately preceding the event giving rise to liability.
Client agrees to indemnify, defend, and hold harmless Provider, its officers, directors, employees, agents, and subcontractors from and against any and all third-party claims, damages, liabilities, costs, and expenses (including reasonable attorney's fees and costs of investigation and defense) arising directly from:
Provider agrees to indemnify, defend, and hold harmless Client from third-party claims arising solely and directly from Provider's gross negligence or willful misconduct in the performance of the services, subject to the limitations of liability set forth in Section 5 of this Agreement. This indemnification shall not apply to claims arising from Client's contributory negligence, failure to maintain the fence, or any excluded matters under Section 7(C).
Provider provides the following express warranties for the work, materials and installation of our fences. Provider warrants that all work will be performed in a good and workmanlike manner consistent with industry standards for fence construction, including:
Texas law implies warranties of merchantability for goods sold by merchants. Texas common law also recognizes implied warranties of good and workmanlike manner for construction services and habitability for residential construction. These warranties are incorporated into this Agreement and are not disclaimed. The express warranties set forth above meet or exceed the requirements of any implied warranties under Texas law.
The warranties provided herein do NOT cover:
To make a warranty claim, Client must:
Failure to comply with any of these requirements shall void the warranty claim.
Provider's sole obligation under this warranty is to repair or replace defective materials or workmanship at Provider's sole option and discretion. Client's exclusive remedy for breach of warranty is repair or replacement as determined by Provider in its sole discretion. In no event shall Client be entitled to a refund, price reduction, or damages beyond the cost of repair or replacement. Client acknowledges that the remedies provided in this warranty section are Client's exclusive remedies for defects in materials or workmanship, except as otherwise required by applicable law, including the Texas Deceptive Trade Practices Act and the Texas Residential Construction Liability Act.
This warranty becomes effective only upon payment in full of the Total Agreement Sum, including any Additional Charges or change orders. No warranty coverage exists for unpaid work. Additionally, Provider may suspend performance of warranty work if Client fails to make timely payments as required under Section 3, provided that Provider gives Client written notice and a reasonable opportunity to cure any payment default before suspending warranty obligations. Provider's warranty obligations shall resume upon Client's cure of the payment default. Provider reserves the right to place a mechanic's lien on the Premises for unpaid amounts as permitted under Texas Property Code Chapter 53.
Gate Operators are covered by a Manufacturer's Warranty. Gates have moving parts, and it is the purchaser's responsibility to properly maintain them according to the Operating Manual provided by the manufacturer. Lack of maintenance is not covered under warranty and voids any other implied warranties. Damages caused by lightning or power surges are also not covered by warranty.
Client must protect its sprinkler system prior to the start of any work. In most cases, Client will be required to validate to their fence consultant that the system is in good working order upon the execution of this Agreement. Client must report damage to their sprinkler system within three (3) days of completion if indeed it was caused by installers, event which, must be evidenced by the Client if it occurred. Provider will not reimburse Client for the cost of any irrigation repairs performed by a non-authorized contractor.
If Client properly cancels this Contract, upon cancellation received and acknowledged, after the three-business-day period Provider shall return to Client any consideration paid to Provider hereunder, less any actual costs incurred by Provider for materials ordered or work performed, and Client shall return any material or drawings provided by Provider in the same condition as received. If Client fails to return materials or returns them in damaged condition, Client shall reimburse Provider for the full replacement cost of such materials. To cancel this Agreement, Client or Provider shall send a written notice of cancellation to Provider or Client, as the case may be at the address for Provider or Client set forth in this Agreement within such three-business-day period.
Provider shall obtain applicable city permits and inspections as specified in the Quote attached.
Provider shall maintain no less than one million dollars ($1,000,000) in Comprehensive General Liability insurance with an insurance Company licensed to do business in Texas.
Client agrees that should Provider encounter unforeseen site conditions on the Premises (including for example buried storage tanks, solid rock, high water table, unsound or uncompacted soil conditions at the footing depth, heavy vine coverings, shrubs/trees within line) which would substantially interfere with Provider's completion of the Work, Provider may require that Client and Provider execute an addendum to this Agreement describing the additional work that must be performed and setting forth the price at which Provider will perform such additional work. Provider shall not be obligated to continue the Work if an addendum is not executed, if, in Provider's sole judgment, continuing the Work as specified herein without any modifications would cause such Work to not meet applicable local building code requirements or not meet Provider's construction standards. Client agrees that Provider shall not be responsible for unforeseen site conditions on the Premises discovered or occurred after completion of the Work.
Client shall mark the location of underground drain lines, sprinkler systems, septic tanks, septic fields or other obstructions.
Provider is not responsible or liable for delays in the commencement or completion of the Work that are the result of conditions beyond Provider's control (including for example weather, strikes, supplier's inability to obtain materials, or a third party's inability to comply with the terms of this Agreement, etc.). Delays caused by unpayment of downpayments do not constitute abandonment and are not included in calculating time frames for payment or performance.
Unless specifically set forth in the description of the Work, Provider shall not move or dispose of soil excavated while performing the Work. Additionally, Client acknowledges that there may be damage to or disfiguration of the turf in and about the area of the Work and the location of the storage of materials due to foot traffic, machinery, storage of materials, or otherwise. Provider shall reseed such areas and fill any substantial ruts or other scars caused by the Provider in the performance of the Work when such remedial work is required as determined in the sole and reasonable determination of Provider.
Client recognizes and acknowledges that during the performance of the Work, certain hazardous conditions could exist in the area of the Work. Provider agrees to take all reasonable steps necessary to make such conditions known and obvious to Client and to prevent Client and others from entering hazardous areas. Client shall indemnify and hold Provider harmless from any liability, damage, claim or expense arising out of the Client's or a third party's disregard of a clear, open and obvious danger in the Work area.
This Agreement is subject to the Texas Residential Construction Liability Act (RCLA), Chapter 27 of the Texas Property Code, which governs construction defect claims.
Client must provide written notice to Provider at least sixty (60) days before filing any lawsuit for construction defects. The notice must:
Provider has the right to inspect all claimed defects and may offer to repair, replace, or settle the claim within sixty (60) days of receiving notice.
The Parties mutually agree to keep the terms and conditions of this Agreement confidential and shall not disclose any information about this Agreement to any third party, except as required by law or with the prior written consent of both Parties.
Parties mutually agree not to speak poorly or negatively of, disparage, defame, and/or speak falsely about each other or any of its representatives, officers, shareholders, managers, members, executives, board members, partners, principals, agents, contractors, vendors, clients and/or employees (the "Non-Disparagement Clause"). This Non-Disparagement clause applies to spoken word, hard copy or printed materials, and electronic media and computer files, it applies to all posts and comments on social media sites, such as Facebook, Instagram, X (formerly known as Twitter), LinkedIn, Reddit, Google Reviews and any other social media platform that in the future may arise and be used as a forum for free speech.
Both parties agree to maintain confidentiality of all confidential business information shared by the other party. Confidential information does not include information that: (a) is or becomes publicly available through no breach of this Agreement; (b) was rightfully in the receiving party's possession prior to disclosure; (c) is independently developed; or (d) is required to be disclosed by law or court order. This confidentiality obligation shall survive termination of this Agreement for a period of three (3) years.
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Provider may subcontract portions of the services to qualified subcontractors including licensed installers, and specialized equipment operators, provided that Provider remains responsible for the performance of all services. Neither party shall assign this Agreement without prior written consent of the other party, which consent shall not be unreasonably withheld, except that Provider may assign this Agreement to (i) a successor entity in connection with a sale of Provider's business, (ii) an affiliate or subsidiary of Provider, or (iii) any entity that acquires all or substantially all of Provider's assets or business through merger, consolidation, or otherwise.
Provider is an independent contractor. Nothing herein creates a partnership, joint venture, agency relationship, or employer-employee relationship between the parties.
Provider shall not be liable for delays or failures in performance resulting from causes beyond its reasonable control, including but not limited to acts of God, severe weather conditions, natural disasters, government actions or restrictions, labor disputes, strikes, equipment failures, accidents, utility company delays, pandemics, epidemics, or acts of terrorism. Provider shall notify Client promptly of any force majeure event and shall make reasonable efforts to minimize delays and resume performance. If a force majeure event prevents Provider's performance for more than sixty (60) consecutive days, either party may terminate this Agreement upon written notice. Upon such termination, Provider shall refund any unearned portion of prepaid fees for services not yet rendered, less any costs already incurred by Provider in preparation for or partial performance of the Work, including but not limited to mobilization costs, equipment rental, labor costs, materials purchased or ordered, subcontractor commitments, design work, permits obtained, and a reasonable cancellation fee not to exceed fifteen percent (15%) of the unearned portion to cover Provider's administrative costs and lost opportunity costs.
If any provision, sentence, phrase or word of this Agreement or the application thereof to any person or circumstance shall be held invalid or unenforceable by a court of competent jurisdiction, such provision shall be reformed to the minimum extent necessary to make it valid and enforceable while preserving the original intent of the parties to the maximum benefit of Provider. To the extent permitted by applicable law, the parties waive any provision of law that would render any provision hereof invalid or unenforceable. If any invalid provision would be valid if some part of it were deleted, the provision shall apply with whatever modification is necessary to make it valid and enforceable in a manner most favorable to Provider. The remainder of the Agreement, or the application of such provision, sentence, phrase or word to persons or circumstances other than those as to which it is held invalid shall not be affected thereby, and each remaining provision shall remain in full force and effect to the maximum extent permitted by law.
This Agreement is made and shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflicts of law principles. The parties irrevocably consent to the exclusive jurisdiction and venue of the state and federal courts located in Harris County, Texas for any action arising out of or relating to this Agreement, and each party waives any objection to venue or inconvenient forum. Each party further waives any right to assert that such courts lack personal jurisdiction over such party or that such courts are an inconvenient forum for any such action. Client consents to service of process by certified mail, return receipt requested, at the address provided in this Agreement or by any other method permitted by law.
If any controversy or claim arises out of or relates to this Agreement, or the breach thereof, and if said controversy or claim cannot be settled through direct discussions within thirty (30) days, the parties agree to first endeavor in good faith to settle the controversy or claim in an amicable manner by non-binding mediation administered by a mutually agreed mediator or mediation service; provided, however, that this mediation requirement shall not apply to or delay any action by Provider to (i) collect payment, (ii) enforce payment terms, (iii) seek injunctive or equitable relief, (iv) protect intellectual property rights, (v) pursue mechanics' lien rights or other statutory remedies, or (vi) prevent the statute of limitations from expiring. If the parties cannot agree on a mediator within fifteen (15) days, either party may petition the state court in Harris County, Texas to appoint a mediator. Each party shall bear its own costs of mediation, and the parties shall share equally the mediator's fees; provided, however, that if the dispute proceeds to litigation or arbitration following unsuccessful mediation, the prevailing party shall be entitled to recover its mediation costs, including its share of the mediator's fees, as part of the costs and expenses awarded under this Agreement. It is further agreed that any efforts by Provider to collect the Total Agreement Sum or any part thereof, enforce Provider's payment rights, seek injunctive relief, or protect Provider's intellectual property rights will not be subject to the mediation provisions set forth above, and Provider may immediately pursue such remedies in any court of competent jurisdiction.
In any action or proceeding to enforce this Agreement or collect amounts due hereunder, the prevailing party shall be entitled to recover from the non-prevailing party all costs and expenses incurred, including without limitation reasonable attorneys' fees (including fees for appellate proceedings and post-judgment collection efforts), paralegal fees, expert witness fees, court costs, filing fees, collection expenses, costs of investigation, costs of obtaining and enforcing any judgment, and prejudgment and post-judgment interest at the maximum rate permitted by law, whether or not litigation is commenced. Provider shall be entitled to recover such costs and expenses even if Provider's claim is settled, withdrawn, or otherwise resolved before final judgment, provided that Provider's position was substantially justified.
EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES THAT IT HAS BEEN INFORMED BY THE OTHER PARTY OR ITS COUNSEL OF THE MEANING AND EFFECT OF THIS WAIVER AND THAT IT MAKES THIS WAIVER VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLY.
Provider's failure to exercise any right or remedy, or Provider's acceptance of partial or delinquent payment, or Provider's delay in exercising any right or remedy, will not operate as a waiver of any of Provider's rights or Client's obligations under this Agreement and will not constitute a waiver of Provider's right to declare an immediate or subsequent default of this Agreement. No waiver by Provider of any provision of this Agreement shall be effective unless in writing and signed by an authorized officer of Provider. Any waiver by Provider of any breach or default shall not constitute a waiver of any subsequent breach or default.
This Agreement, together with the fully executed Quote, contains the entire understanding and Agreement between the parties with respect to the Work and supersedes all prior or contemporaneous written and oral Agreements and understandings with respect to the subject matter hereof. NO ORAL PROMISES OR AGREEMENTS ARE A PART OF THIS AGREEMENT. The Quote is incorporated by reference and is an integral part of this Agreement. This Agreement shall not be effective and binding upon Provider until the Quote has been countersigned by a duly authorized officer of Provider.