Standard Terms and Conditions

ACR Standard Terms and Conditions

 

  1. 1. Application.These standard terms and conditions shall apply to the exclusion of any terms and conditions contained in any communication of Customer not specifically agreed to in writing by ACR. Accordingly, preprinted terms and conditions appearing on any purchase order of Customer are superseded by these terms. Customer’s power to accept and acceptance of ACR’s proposal for the Scope of Work is expressly made conditional on Customer’s acceptance of the terms and conditions contained herein.
  2. 2. Determination of Suitability of Scope of Work. After viewing the Work Site, ACR, based on its experience and training and using its best judgment, may have offered Customer its opinion as to an appropriate, cost-effective Scope of Work for the conditions at the Work Site. Customer acknowledges that ACR has only offered its opinion, which is not warranted to be the best or a suitable solution, and that Customer is ultimately responsible for determining the suitability of the Scope of Work.
  3. 3. Performance of Scope of Work. Unless otherwise specified by Customer, ACR shall perform the Scope of Work in accordance with ACR’s standard practices. In the event Customer directs ACR to perform the work in a contrary manner, Customer shall defend, indemnify, and hold harmless ACR for any resultant damage or liability. ACR shall not be responsible for performing, or supervising or directing the performance of, any work of any nature whatsoever other than the Scope of Work, including without limitation: (i) any repairs to the Work Site (including any repairs of damage reasonably contemplated in ACR’s performance of the Scope of Work – for example, replacement of flooring or drywall removed due to water or smoke damage or to permit access to saturated areas); or (ii) repairing or correcting any preexisting condition discovered while performing the Scope of Work (for example, rot, mold, or old water damage discovered while removing damaged drywall).
  4. 4. Materials & Utilities. ACR shall furnish all materials specified in the Scope of Work and all equipment and supplies incident to performance of the Scope of Work. Customer agrees to furnish and make available to ACR at the Work site all utility services reasonably necessary for ACR to perform the Scope of Work.
  5. 5. Subcontractors. ACR may, in its discretion and without further consent of Customer, subcontract any or all portions of the Scope of Work to such subcontractors as ACR may determine are trained and competent to provide the subject work, but ACR shall in all such cases remain fully responsible for such work.
  6. 6. Access to Work Site. Customer shall permit ACR full access to the Work Site at such times as reasonably necessary and appropriate to performance of the Scope of Work including a lockbox and key if approved by Customer.
  7. 7. Customer’s Information. Customer has fully informed ACR of all information regarding the Work Site and the conditions thereof that Customer believes may be pertinent to the Work Site, the Scope of Work, and the conditions or damage that the Scope of Work is intended to correct.
  8. 8. Conditions at Work Site; Indemnification. Except to the extent Customer has disclosed in writing to ACR any hazardous or dangerous conditions upon the Work Site, Customer represents that to the best of its knowledge and belief the Work Site is in sound and safe condition and contains no hidden or concealed dangers or hazardous materials. Customer shall indemnify and hold ACR and its members, managers, employees, and agents harmless from and against any and all claims, damages, losses, and expenses of any type and character whatsoever (including reasonable attorney fees) arising or resulting from or in connection with, or related to, any hazardous or dangerous conditions or materials upon the Work Site and not previously disclosed in writing by Customer, which obligations shall survive termination of this agreement and completion of the Scope of Work. The preceding indemnity provision shall not apply to matters proximately resulting from the gross negligence or willful misconduct of ACR.
  9. 9. Customer’s Acknowledgment of Risk. Customer acknowledges that ACR has advised Customer that hazards (such as slippery floors, trip hazards, exposed tackless strip for carpets, ladders, operating equipment) may be created and exist at the Work Site during performance of the Scope of Work, and that Customer shall utilize the utmost caution in accessing the Work Site and restrict access to the Work Site by children and other non-essential persons.
  10. 10. Abnormal Water. Customer understands and acknowledges that: (i) the presence of water indoors is an abnormal condition that can cause or contribute to a number of problems; (ii) the adverse consequences to health and property of abnormal water are progressive in that they increase with time; and (iii) the progressive stages of indoor water damage can generally be broken down into the following stages: (A) migration of water into areas not originally affected by spreading laterally into adjoining rooms, penetrating down, and wicking up into porous material, such that all areas require evaluation not just those with visible saturation; (B) saturated materials absorb moisture and swell, which damage can in some cases be corrected by drying (the more rapid the better) and restoration and in some cases is permanent; (C) evaporation of water raises humidity to abnormal levels that can damage some porous materials over time, which high levels of indoor moisture should be quickly reduced in order to minimize damage; and (D) mold and bacterial spores germinate and multiply in wet areas, which microorganisms can cause mold damage, degrade indoor air quality, and produce antigens and allergens that cause allergies, infections, and toxic diseases.
  1. 11. Moisture; Mold & Mildew; Limitations. Customer understands and acknowledges that the following actions can be taken to help reduce mold growth and damage to affected materials: (i) removal of water as quickly and thoroughly as possible; (ii) application of anti-microbial agents to inhibit growth of mold and other bio-contaminants, as needed; (iii) introduction of rapid air movement into areas and cavities to increase the rate of evaporation; and (iv) reduction of indoor moisture levels to, and maintenance at, appropriate levels. To the extent that the Scope of Work includes the removal of water or rectification of water damage with respect to areas that are not fully accessible by ACR, Customer understands and acknowledges that ACR does not represent or warrant that: (i) ACR will accomplish removal of all moisture from such areas; or (ii) the growth of mold and/or mildew in such areas has not begun or will not later begin. To the extent the Scope of Work includes the removal or remediation of mold and/or mildew, Customer understands and acknowledges that, due to the nature of mold and mildew, ACR does not represent or warrant that: (i) all mold and/or mildew can or will be removed; or (ii) mold and/or mildew will not recur. Customer acknowledges that completion of the Scope of Work may not constitute all necessary remedial activities and that continued or additional remedial activities may be required after completion of the Scope of Work, and that ACR shall have no liability or responsibilities to Customer with respect to such continued or additional remedial activities.
  2. 12. Chemicals & Anti-Microbial Agents. Customer acknowledges that: (i) ACR may recommend or offer the use of certain chemical or anti-microbial agents (“Chemicals”) in order to inhibit the growth of microorganisms on or in wet materials; (ii) Chemicals may pose certain risks or hazards to health, the determination of which is beyond the knowledge or expertise of ACR; and (iii) ACR can provide, if requested, to Customer Material Safety Data Sheets for any Chemicals recommended or offered. Unless Customer expressly declines, in writing, the use of Chemicals, Customer hereby authorizes the use of Chemicals as reflected in the Scope of Work.
  3. 13. Fire & Smoke Damage. Customer understands and acknowledges that: (i) smoke and fumes may permeate materials and inaccessible areas; (ii) remediation of smoke and fire damage may require removal and replacement of building materials, fixtures, and furnishings in order to mitigate residual odors, and failure to remove and replace materials as suggested by ACR may frustrate mitigation or elimination of odors; (iii) the passage of time is a factor in the mitigation of odors; (iv) sensitivity to odors varies with the individual person; and (v) ACR. LLC does not represent or warrant that all residual fire and smoke odors will be eliminated.
  4. 14. Trauma/Crime Scene. Customer understands and acknowledges that: (i) trauma and crime scene cleanup involves inherent risks due to the presence of bodily fluids and possible blood-borne pathogens; (ii) ACR strives to implement appropriate safeguards to minimize such risks; (iii) full and complete information regarding the Work Site, the subject accident, accident victims, and medical conditions will assist ACR in minimizing such risks to ACR’s personnel and to others; and (iv) completion of ACR’s Health Information Form fully, accurately, and honestly will assist ACR in gathering information and controlling such risks.
  5. 15. Equipment. ACR may provide and utilize equipment, including high velocity airmovers (fans) and dehumidifiers, during performance of the Scope of Work. If such equipment is provided, Customer shall execute ACR’s Customer Responsibility Form, which identifies and provides instruction for any equipment provided. Customer shall follow all instructions contained in said form. Customer acknowledges that equipment may present certain risks. Customer will not permit children access to equipment. If it is necessary for Customer to move equipment, Customer shall first shut off and unplug the equipment. Customer acknowledges responsibility for loss or theft of ACR’s equipment while it is at the Work Site, and Customer shall take reasonable precautions to insure that the equipment is not lost or stolen.
  6. 16. Licensure & Permits. ACR has obtained and shall for the duration of this agreement maintain, and require any subcontractor to have and so maintain, any and all licensing and permits required by relevant authorities to perform the Scope of Work.
  7. 17. Completion of Scope of Work. Upon ACR informing Customer (whether orally, in writing, submission of a final bill or invoice, or otherwise) of completion of the Scope of Work, Customer shall, within five (5) days thereafter, inspect the Work Site and either: (i) sign ACR’s Acknowledgment of Certificate of Completion if the Scope of Work has been completed to Customer’s reasonable satisfaction; or (ii) provide written notice to ACR of all particulars regarding any part of the Scope of Work that Customer considers incomplete or defective. Failure of Customer to give such written notice (as defined in Section 28 below) to ACR within said five (5) day period shall be deemed Customer’s acknowledgment that the Scope of Work has been completed to Customer’s satisfaction. Customer’s acknowledgment of satisfactory completion of the Scope of Work, whether given in writing or deemed given hereunder, shall not limit Customer’s rights under ACR’s express warranty below.
  1. 18. Warranty. ACR warrants that all services will be: (i) performed in accordance with current, sound, and generally accepted industry practices by personnel appropriately trained in the applicable field; (ii) in compliance with this agreement and free from defect; and (iii) performed in compliance with applicable law and regulations. ACR will re-perform, at no cost to Customer, any services determined to be defective and of which ACR is notified in writing within one (1) year of completion of the subject work. (3) Years for any work performed, if assigned by Contractor Connections. ACR shall assign to Customer all warranties offered by manufacturers or vendors on materials or goods provided hereunder, but ACR offers no other warranty on materials or goods whatsoever. Warranties offered by ACR are for the exclusive benefit of Customer and may not be assigned or transferred by Customer to any other person or entity.
  2. 19. Right to Correct. ACR desires that its customers will be reasonably satisfied with work performed. Accordingly, ACR requests, and Customer agrees, as an express term of this agreement and an express condition to the warranty offered herein, that Customer shall promptly notify ACR of all particulars regarding any part of the Scope of Work that Customer considers incomplete or defective and provide ACR a reasonable opportunity to inspect and correct the same prior to commencing any legal action with respect to the Scope of Work.
  3. 20. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW: (I) THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND ARE GIVEN BY ACR AND ACCEPTED BY CUSTOMER IN LIEU OF: (A) ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR PURPOSE; AND (B) ANY RIGHT, CLAIM, OR REMEDY AGAINST ACR, WHETHER ARISING IN TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE; (II) IN NO EVENT SHALL ACR BE RESPONSIBLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES; AND (III) IN NO EVENT SHALL ACR’S LIABILITY HEREUNDER EXCEED THE TOTAL PRICE SHOWN FOR THE SCOPE OF WORK. ACR SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DISAPPEARANCE OF, OR DAMAGE TO, PERSONAL PROPERTY OF CUSTOMER LOCATED AT THE WORK SITE, AND CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR SECURING, PROTECTING, OR REMOVING SUCH PERSONAL PROPERTY AS CUSTOMER DEEMS APPROPRIATE TO PROTECT THE SAME.
  4. 21. ACR’s Insurance. ACR has obtained and shall for the duration of this agreement maintain, and require any subcontractor to have and so maintain, commercial general liability insurance with coverage limits for injuries, including accidental death, and property damage of at least $1,000,000 for any one occurrence.
  5. 22. Customer’s Insurance. Customer represents and warrants that it has and will for the duration of this agreement maintain policies of premises liability insurance and fire and casualty insurance with respect to the Work Site, and that, to the extent permitted by law, such policies shall provide that the insurance company waives all right of recovery by way of subrogation against ACR in connection with any loss or damage caused by any of the perils covered by such insurance.
  6. 23. Delay. ACR is not responsible for any failure or delay in performance resulting from causes beyond its reasonable control, including without limitation, acts of government, court order, civil unrest, sabotage, adverse weather conditions, delays of subcontractors, labor troubles, and shortage of materials or services. ACR will give timely notice to Customer of any such event and will endeavor to avoid or remove the cause and resume performance with minimum delay. The time for delivery will be extended accordingly.
  7. 24. Payment. Payment for materials and services provided hereunder shall be paid by Customer when due, as indicated in the Payment Terms box in Part 1. If Customer fails to make payments when due, ACR may discontinue any work until all accounts are brought current, and Customer shall: (i) be liable for a late fee on the balance of late payments at the rate of 1.5% per month (18% per annum); and (ii) reimburse all costs (including reasonable attorney’s fees) incurred by ACR in attempting to collect sums due from Customer.
  8. 25. Proceeds of Insurance. All charges for services and materials provided hereunder are the responsibility and liability of Customer, whether or not claims in relation to such charges are submitted to or covered by insurance. Customer hereby assigns to ACR proceeds of insurance from such claims and authorizes and directs the insurer to pay such proceeds directly to ACR. Notwithstanding receipt of any such payment, ACR, Customer shall be responsible for any deductible or other shortfall between total charges hereunder and the proceeds of insurance. ACR may, in its discretion, extend the terms of payment hereunder when payment for insurance proceeds is expected, but Customer shall remain fully responsible for payment regardless of any such extension. Customer authorizes ACR to provide a copy of this agreement to Customer’s insurer.
  9. 26. Credit Terms. If the Payment Terms checked in Part 1 provide for credit to Customer, such credit is subject to the continuing approval of ACR and may be revoked at any time upon ACR’s determination of a change in Customer’s creditworthiness.
  1. 27. Taxes. Customer is responsible for all taxes, duties, and other charges arising from the sale, delivery, or use of the materials and services provided hereunder and will reimburse ACR for any such charges ACR may be required to pay.
  2. 28. Notices. All notices, requests, demands, and other communications required or permitted to be given hereunder shall, except as otherwise specified herein, be in writing and will be deemed given only if delivered: (i) by personal delivery; (ii) by a reputable, nationwide overnight courier service, fees prepaid; or (iii) by certified or registered mail, return receipt requested, postage prepaid at the addresses set forth in Part 1 or to such other address as the recipient party may hereinafter designate by notice so given. All such notices, requests, demands, and other communications so given will: (i) if delivered personally, be deemed given upon such delivery; (ii) if delivered by overnight courier, be deemed given on the earlier of the first business day following the date sent by such overnight courier or upon receipt; and (iii) if delivered by mail, be deemed given on the earlier of the third business day following mailing or upon receipt.
  3. 29. Termination. Either party may terminate the order and this agreement at any time by written notice to the other stating the effective date of termination. In such event, ACR shall cease providing materials and services as promptly as practicable, and Customer shall promptly pay ACR for all services performed and materials delivered or purchased prior to the stated date of termination and, if Customer was the terminating party, the reasonable costs of demobilization and termination incurred by ACR. Upon termination of this agreement, Customer shall allow ACR all reasonable access to the Work Site to recover its equipment, tools, materials, supplies, and other property.
  4. 30. Third-Party Beneficiaries. This agreement is not intended to, and does not create any rights or benefits in or to any individual or entity other than ACR and Customer, except as expressly provided herein.
  5. 31. Incorporation by Reference. The terms of any and all separate forms of ACR referenced in this document are hereby incorporated herein by this reference.
  6. 32. Severability. If in any instance any provision of the agreement shall be determined to be invalid or unenforceable under any law or regulation, such provision shall not apply in such instance, but the remaining provisions hereof shall be given effect in accordance with their terms.
  7. 33. Successors & Assigns. This agreement and all the provisions hereof shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors, heirs, personal representatives, and assigns.
  8. 34. Assignment. Subject to Section 5, neither party may assign this agreement or any interest therein without the prior express written consent of the other party.
  9. 35. Disputes. If the parties are unable to negotiate in good faith an amicable solution to any dispute hereunder, they shall attempt to reach a solution through mediation, the costs of which shall be shared. If unable to reach a solution through mediation, the parties shall submit to binding arbitration in the State of Arizona any dispute involving amounts totaling less than $10,000 in the aggregate. Disputes concerning greater amounts may be addressed through the litigation process.
  10. 36. Governing Law. This agreement shall be governed by the laws of the State of Arizona.
  11. 37. Counterparts; Facsimiles, Emails. This agreement may be executed by the parties in any number of counterparts, each of which when executed and delivered shall be an original, but all of which shall constitute but one and the same instrument. Signed counterparts of this agreement may be delivered by facsimile or email, and such facsimile or email counterparts and signatures shall be deemed to be, and fully effective as, originals for all purposes.
  12. 38. Entire Agreement & Modification. This agreement constitutes the entire agreement between the two parties and supersedes any prior negotiations, understandings, and agreements between the parties respecting the subject matter hereof. Modifications of this agreement, including without limitation any modification or amendment of the Scope of Work or the specified pricing, must be in writing and signed by a duly authorized representatives of both ACR and Customer.