TERMS AND CONDITIONS
Welcome to www.asktmroofing.com /RGCA which is owned and operated by TM Roofing and Construction Group. The below terms and conditions are a material part of the General Contractor Agreement signed by Customer (“GCA”). These terms and conditions, as amended by Contractor from time to time, are specifically incorporated into the GCA.
23. Payment Schedule for Commercial and Multi-family. Per Section 14 of the GCA, it is the requirement that the full (100%) amount of any payments made by Insurer are immediately due, owing and payable to Contractor. However, in any instance where those provisions have been waived by Contractor, in writing, then all payments to Contractor are due in accordance with this payment schedule. The Contract Amount shall be paid to Contractor as follows: (a) an initial payment of 30% of the Contract Amount shall be due once the Contract Amount is determined; (b) a second payment of 20% of the Contract Amount shall be paid to Contractor upon delivery of materials to the Property; (c) a third payment of 20% of the Contract Amount shall be paid to Contractor after the initial dry-in inspection; (d) a fourth payment of 20% of the Contract Amount shall be paid to Contractor after the roofing systems pass the final building inspection; and (e) a fifth and final payment of 10% of the Contract Amount shall be paid upon the final walkthrough. Any payments issued to Contractor shall be made payable to “TM Roofing and Construction Group” and delivered to 698 Grapevine Highway suite 102 Hurst, TX 76054 (or by wire transfer).
24. Notices. All notices or communications required hereunder shall be written and delivered in person, by registered mail, or express overnight courier, at the recipient’s address set forth above or such other address provided, in writing, by a Party.
25. Costs and Supplements. Contractor is entitled to payment for emergency construction services, estimating construction services and general contractor services, and any related labor, materials, general conditions, project specific conditions, overhead and/or profit. Any supplemental payments tendered by Insurer concerning the Claim shall become a part of the GCA and otherwise made a part of the Contract Amount. Customer shall have no claim to any supplemental payments tendered by Insurer concerning the Claim unless otherwise agreed to in writing signed by the Parties.
26. Limitations on Liability. This Section shall be read in concert with Section 17 of the GCA, Contractor shall not be liable for failure of performance due to labor controversies, pandemics, strikes, fires, weather, and inability to obtain materials from usual sources, or any other circumstances beyond the control of Contractor whether of a similar or dissimilar nature. Customer agrees that Contractor shall not be liable for incidental or consequential damages under any circumstances whatsoever. Customer and its heirs, successors, legal representatives and assigns hereby release Contractor from any and all liability whatsoever in connection with the GCA and any emergency construction services, estimating construction services and general contractor services performed in relation to the GCA. The scope of this release specifically includes Contractor’s affiliates, business interests, subsidiaries and/or corporations including, without limitation, their representative managing partners, officers, directors, shareholders, employees, agents, assigns, successors, servants, and representatives (including attorneys), together with any and all other persons, firms and/or corporations who are or might be liable. The scope of this release shall also include, but not be limited to, Contractor’s own negligence, as well as any and all obligations, payments, claims, liabilities, demands, suits, and causes of action of every nature and kind, whether vested or contingent, accrued or un-accrued, known or unknown, in law or in equity, matured or un-matured, whether or not such claims were or could have been heretofore brought or raised, that arise from, pertain, relate or refer to the GCA. Customer and its heirs, successors, legal representatives and assigns further agree to defend, hold harmless and to release Contractor and its affiliates, business interests, subsidiaries and/or corporations including, without limitation, their representative managing partners, officers, directors, shareholders, employees, agents, assigns, successors, servants, and representatives (including attorneys), together with any and all other persons, firms and/or corporations who are or might be liable, from and against any and all claims and causes of action of every kind arising from, relating or pertaining to the GCA. To the full extent permitted by law, Customer hereby agrees to and shall fully indemnify Contractor, along with its officers, directors, agents and employees, from any and all suits, actions, claims, losses, damages, costs, judgments or expenses of whatever nature, name and description, specifically including but not limited to claims allegedly based Contractor’s own negligence, which may arise out of or are in any way related to or derive from the GCA. The monetary extent of Customer’s indemnification is to be 95% of the Contract Amount and bears a reasonable commercial relationship to the GCA and all related agreements, and is hereby incorporated by reference into all project specifications or bid documents affiliated with the GCA, if any.
27. Additional Representations and Acknowledgements. Customer represents that Customer owns the premises and/or property on which emergency construction services, estimating construction services and/or general contractor services are to be performed. Customer shall identify boundary lines and Customer shall be solely responsible for obtaining any and all necessary zoning approvals and variances before commencement of work by Contractor. Contractor shall comply with all local requirements for building permits, inspections, and zoning. All surplus material shall remain the sole property of Contractor. During work, Contractor may use Customer’s utilities and all charges shall be Customer’s responsibility. If Contractor is unable to complete the work for any reason, Contractor may assign its obligations hereunder to a third-party of its choice. All rights, remedies and privileges of Contractor hereunder shall inure to the benefit of and are enforceable by its assignees. Customer and each co-signer hereby waive as against any assignee of Contractor, all claims and defenses relating to quality of work or product, whether now or hereafter existing of Customer against Contractor, except claims and defenses existing during the terms of any warranties hereunder. Customer agrees to execute all other documents necessary for Contractor to carry out the terms of the GCA and/or comply with all applicable laws. Contractor may make minor variations in work or substitute material of equal or better quality without consent of Customer.
28. Authority to Bind / Joint and Several Agreement. Customer(s) by their signature on the GCA certify that they have full and complete authority to bind Customer to the GCA. Customer agrees that upon acceptance of the GCA by Contractor, each of Customer shall be jointly and severally liable and that each is the agent of the other Customers for the purpose of binding each and all Customer, for all purposes including specifications, changes, work order changes, or Additional Work or adjustments to the GCA.
29. Labor and Manufacture Warranties. This Section shall be read in concert with Section 21 of the GCA, Contractor offers a limited labor warranty for workmanship. A copy of such limited labor warranty is available upon request. Additionally, this warranty is not transferable or assignable unless agreed to in writing by the Parties. Contractor agrees to transfer any applicable manufacturer warranties to Customer upon completion of the general contracting services. Customer will be supplied with all warranty information from the manufacturer upon request. Any warranties offered by Contractor or manufacturer shall not become effective until Contractor is paid, in full, pursuant to the GCA.
30. Assignment – Binding Nature. Customer may not assign the GCA without consent of Contractor. Any such attempted assignment shall be void and of no legal effect. Contractor may freely assign all rights and obligations under the GCA. The GCA shall be binding on and inure to the benefit of Contractor’s respective successors, heirs and permitted assigns
31. Waiver. Failure of Contractor to enforce any of the provisions of the GCA shall not waive such provisions or the right of Contractor to thereafter enforce such provisions. Any consent or waiver of compliance shall be effective only if in writing and signed by the Parties but shall not be deemed to extend beyond the particular subject matter thereof. All of Contractor’s remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available in equity or at law.
32. Acceptance. All orders are subject to acceptance by Contractor. The GCA shall not bind Contractor unless accepted by Contractor at its corporate headquarters, and if Contractor declines such acceptance for any reason, all deposit monies paid shall be refunded to Customer in full, and Contractor shall have no further responsibility or liability hereunder. No work will be done or material furnished except as specified herein or otherwise agreed to in writing and signed by the Parties. Any modification to the GCA, which changes the emergency construction services, estimating construction services and general contractor services or work to be performed, materials to be supplied, costs or the estimated completion date, must be in writing and signed by the Parties.
33. Headings. The headings and captions to the GCA are inserted for convenience of reference only and in no way define, describe, or limit the scope or intent of the GCA or any of the provisions hereof. The Parties acknowledge that they have reviewed the GCA in its entirety and have had a full opportunity to negotiate its terms, and therefore waive all applicable rules of construction that would require that any provision of the GCA should be construed against its drafter, and agree that all provisions of the GCA shall be construed as a whole, according to the fair meaning of the language used.
34. Governing Law. The GCA shall be governed, interpreted, enforced and resolved exclusively by the laws of Texas. THE PARTIES HEREBY WAIVE TRIAL BY JURY FOR ANY DISPUTES THAT ARISE OUT OF OR OTHERWISE RELATE, PERTAIN OR REFER TO THE GCA. As an initial step in resolving any dispute, the Parties must each designate an individual who is authorized to conduct “peer to peer” settlement communications with, by and between the authorized representatives of the other party (with full authority to resolve the dispute), to be conducted by telephone, unless the parties mutually agree to meet in person to conduct such settlement communications. These peer to peer communications toward resolution must occur within 10 days of either party giving written notice of a dispute to the other party. Thereafter, the Parties may mediate any dispute prior to instituting legal proceedings against one another; however, Customer shall remain subject to the notice and cure provisions of Texas Statutes. The state courts located in Texas shall be the sole and exclusive jurisdiction and venue for any and all litigation concerning any disputes between the Parties.
35. Change Orders. By signing any Change Orders, Addendums, Specification Sheets, Escrow Agreements, Certificates of Completion and/or the like (“Addendums”) subsequent to the GCA, Customer, by doing so, represents, warrants and agrees that Contractor is not in breach or default in any respect under the Agreement (or, if any such breach or default exists, Customer hereby irrevocably and unconditionally waives the same). Furthermore, by signing such Addendums, Customer further agrees to withdraw, and/or stop pursuing, any and all administrative complaints that may have been filed against Contractor. Customer further agrees to remove any and all negative reviews by Customer of Contractor or Contractor’s employees published online.
36. Dates of Performance. Dates of performance of the construction services are currently uncertain. Contractor will provide Customer with a detailed timeline once the Contract Amount is determined. Any approximate commencement and completion dates are estimates only.
37. Certificates of Completion. After Contractor has completed the construction services, or any part thereof, Customer shall inspect the completed construction services (which shall occur promptly upon Contractor’s request). Any objections to the construction services shall be given in writing to Contractor within 3 days of the inspection. Contractor shall then have a reasonable period of time to address such objections. If there are no objections, or such objections have otherwise been resolved, then Customer shall sign a certificate of completion (or any other documents required by Insurer to secure the release of insurance proceeds).
38. Independent; Supervision. Customer and Contractor have entered into the GCA after an arm’s length negotiation. The GCA is a bona fide written agreement between the Parties. Contractor, at all times relevant to this transaction, shall be deemed an independent contractor and not an agent or representative of Customer. Contractor shall perform or manage the emergency construction services, general contractor services, its employees, subcontractors and suppliers using its best skill and attention. Contractor shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the construction services.
39. Security; Marketing. Customer consents to having Contractor conduct photography, photographic surveillance, 24/7 video surveillance (including surveillance conducted by drone) to secure the project site and properly document the construction services and the progress thereof. Furthermore, Customer authorizes Contractor to use such images in its marketing and on social media.
40. Exclusions. The GCA does not include any mold, asbestos, or crystalline silica abatement, removal, or encapsulation, or any removal of lead paint. If mold, asbestos, crystalline silica, or lead paint is found existing on the Property, any cost to abate, remove, or encapsulate shall be paid by Customer as Additional Work. The GCA does not include, unless expressly specified, any decking or substrate replacement or repair. Customer agrees that Contractor shall not be responsible for preexisting construction deficiencies, defects, damages, building envelope deficiencies (i.e. design, construction, existing building materials, etc.) and conditions of the Property that reveal themselves during Contractor’s performance under the GCA, including, but not limited to, nail pops, wood rot, rust, decking deflection, substrate deterioration, termites, etc. Customer acknowledges and accepts that Contractor expressly disclaims any and all liability whatsoever arising from or pertaining to any preexisting construction deficiencies whatsoever. Customer agrees that Contractor shall not be liable for incidental or consequential damages under any circumstances whatsoever.
41. Entire Agreement. The GCA (front and back) and the Terms and Conditions set forth herein constitute the entire agreement between the Parties with respect to the matters herein, supersedes any and all prior written and/or oral agreements, and may not be amended except by a written instrument executed by the Parties. The subsequent signing of any Addendums shall be incorporated herein and made a material part of the GCA.
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