Terms and Conditions
1. DEFINITIONS
A. “Company” means Bayou City Aire, LLC.
B. “Customer” means the Property owner and/or agent and/or representative and/or employee and/or contractor and/or subcontractor of the Property owner requesting Company to provide labor and/or materials.
C. “Property” means the premises and entire area of the real property to which the Customer has contracted with the Company to provide its labor and/or materials.
D “Work” means labor and/or materials and/or improvements and/or goods and/or services of whatever nature and kind to be furnished or furnished to the Property and/or Residence and/or Customer.
E. “Agreement” means the entire agreement and/or Heating Ventilation and Air-Conditioning (HV AC) Agreement, Preventative Maintenance Agreement and/or any other agreement between the Company and the Customer for Work to be carried out (including but not limited to all change orders, purchase orders, and/or work orders), and labor and/or materials to be furnished, by the Company to the Property and/or Customer. This includes any work order, change order, invoice, purchase order and/or any other communication, including, but not limited to, written, e-mail, and/or oral, which identifies requests for Work, labor and/or materials; and/or identifies Work, labor and/or materials to be provided to the Customer; and/or identifies Work, labor and/or materials to be provided, and/or already provided, to the Property.
F. “Proposal” means the estimate that identifies proposed scope of work and cost associated therewith however so transmitted by the Company.
G. “Invoice” means the itemized statement furnished to Customer by Company upon completion of work specifying the amount due for the Work provided by Company.
H. “Substantial Completeness” means the stage of the Work where the Work is sufficiently complete, in accordance with the Agreement, so as to be operational and fit for the intended use.
I. “Completeness” means the actual completion of the Work under the Agreement including any extras or change orders reasonably required or contemplated under the Agreement, other than warranty work or replacement or repair of the Work performed under the Contract.
J. “Accrual of Indebtedness” means the last day of the month in which the Agreement has been completed, finally settled, or abandoned. In the event either party terminates the Agreement in accordance with the Agreement, the Accrual of Indebtedness occurs on the last day of the month in which a written declaration by the Company or the Customer is received by the party to the Agreement stating that the contract has been terminated.
2. GENERAL
A. These Standard Terms and Conditions apply to all Agreements of the Company to provide services and/or labor and/or materials to any Property and/or Customer, including but not limited to: new construction, repairs, renovations, remodels, maintenance, upgrades, replacements, renewals, consumable supplies and generally all labor and materials related to or incident thereto. These Standard Terms and Conditions form an integral part of all Agreements of the Company. Agreements varying these Standard Terms and Conditions must be in writing and signed by both parties.
B. These Standard Terms and Conditions shall govern and control every order for services and/or goods and/or labor and/or materials placed with the Company, whether oral or written, howsoever transmitted, whether by telephone, in writing, fax, e-mail, telex or cable communication, and shall be deemed thereby acknowledged and accepted by the Customer or on its behalf.
C. Proposals of the Company are not binding and are valid for thirty (30) days from date of issuance. Proposals are subject to change until they are
accepted by the Company. They shall include only the services, labor and/or materials explicitly specified therein.
D. Agreements will be deemed binding on Company once it has accepted the Agreement and Proposal incident thereto in writing. This shall apply mutatis mutandis to all amendments to or alterations of Agreements.
E. The Company and the Customer have jointly reviewed the Work to be carried out, which is as described in the Agreement and Proposal. The price for same shall be as noted in the Agreement, Proposal and Invoice, excluding however, any additional costs and/or expenses and/or additional labor and/or materials that may be required to perform additional Work over and above the scope of the Work described in the Agreement, Proposal and/or Invoice but discovered once the Company commenced to execute the Work. By way of example only and not by way of limitation, such additional Work may include dismantling for purposes of making areas accessible where Work is to be performed; cleaning and/or disposal of waste materials in compliance with applicable laws and/or regulations, and/or the discovery of additional Work that must be completed in order to undertake the Work described in the Agreement and Proposal. If concealed or unknown physical conditions are encountered at the Property that differ materially from those indicated in the Agreement and Proposal or from those conditions ordinarily found to exist, the Contract Sum shall be increased accordingly. Moreover, from time to time, the Customer may request additional Work and/or labor and/or materials, or may request to increase the scope of Work contained in the Agreement and Proposal. All such additional Work will be charged as extra and shall be payable by the Customer, together with the price noted in the Agreement, Proposal, and/or Invoice and any subsequent change orders. Furthermore, from time to time, the Company’s actual cost of materials may increase due to economic factors beyond the Company’s control. In the event that the Company’s actual cost of materials increases during the Work by more than 10% from the time the Company and Customer enter into the Agreement due to economic factors outside of the Company’s control, then Customer shall pay the actual increase in price of materials. Company shall promptly furnish all such increases in price of materials to Customer in writing. By way of example only and not by way of limitation, such price increases may apply to the price of HVAC, freon, ductwork, wine cooler systems, and generator systems.
F. Should Company discover any of the following defective conditions exist on Customer’s Property in the course and scope of providing Work to Customer, Customer agrees to hold Company harmless: 1) Improper and/or faulty plumbing; 2) Improper and/or faulty equipment, including but not limited to HVAC systems, wine cooler and generator systems; 3) Improper and/or faulty electrical conditions; 4) Existing mold, mildew and/or water damage; 5) Existing conditions that are illegal and/or not up to applicable building codes and/or industry standards; and 6) Any defect and/or damage whatsoever discovered by Company.
G. All materials under the Agreement between Company and Customer shall be supplied and installed by Company, unless explicitly agreed to in writing.
H. All labor under the Agreement between Company and Customer shall be provided by Company, and/or Company’s subcontractors unless explicitly agreed to in writing.
I. Company’s subcontractors are bound by the Master Subcontract Agreement. Company’s subcontractors are also bound by these Standard Terms and Conditions so long as they are not in conflict with the Company’s Master SubcontractAgreement. In the event there is a conflict between any provision of these Standard Terms and Conditions and the Master Subcontract Agreement, the Master Subcontract Agreement shall control any such provision that is in conflict.
J. The person agreeing to the Agreement and/or signing the Agreement, warrants to the Company it is authorized to accept the Agreement and Proposal for and on behalf of the Customer whose name appears on the Agreement.
K. Customer agrees to protect any personal property, including but not limited to, carpets, rugs, furniture, landscaping, and/or any other appurtenances to the Property.
3. PREVENTATIVE MAINTENANCE
A. Preventative Maintenance Agreements automatically renew on a yearly basis unless the Customer terminates the Preventative Maintenance Agreement in writing prior to any renewal period. The cost and/or fee of the Preventative Maintenance Agreement is periodically reviewed by the Company before each renewal period and is subject to change. Preventative maintenance is only scheduled during normal business hours Monday through Friday. Work performed outside of the Preventative Maintenance Agreement is charged as extra. The equipment covered, the scope, the scheduling of preventative maintenance and the fee/costs are subject to the individual terms of each Preventative Maintenance Agreement.
B. Customer warrants that it shall maintain according to manufacturer requirements and/or industry standard any equipment, systems and/or Work installed and/or provided by Company. Company shall be in no way liable to Customer for any reason should Customer fail to maintain and/or neglect any equipment, systems and/or Work installed and/or provided by Company.
4. INSURANCE
A Company carries a Businessowners’ Policy, which includes the following coverage:
a. Up to $2,000,000 “products-completed operations hazard” for bodily injury and property damage arising out of Company’s Work.
B. Customer shall provide property insurance to cover the value of the Customer’s property, including any Work provided under this Agreement. The Company is entitled to receive an increase in the Contract Sum equal to the insurance proceeds related to a loss for damage to the Work covered by the Customer’s property insurance.
C. Unless specifically precluded by the Customer’s property insurance policy, the Customer and Company waive all rights against (1) each other and any of their subcontractors, suppliers, agents and employees, each of the other; and (2) the architect, architect’s consultants and any of their agents and employees, for damages cause by fire or other causes of loss to the extent covered by property insurance or other insurance applicable to the work.
D. Customer shall provide certificate of insurance showing coverage prior to commencement of Work.
5. PAYMENT
A. Upon completion of the Work performed by Company, Company will issue a final Invoice to Customer, with the total amount due to Company and owed by Customer. Customer is bound and obligated to make payment to Company in the amount stated in the Invoice by approved payment method immediately upon presentation and/or receipt of the final Invoice.
B. Upon payment of the final Invoice inclusive of any statutory retainage withheld by Customer, Company shall execute releases and waivers of any Mechanic’s and Materialman’s liens Company may be entitled to claim on the Property, if so requested or required.
6. MECHANIC’S AND MATERIALMAN’S LIEN ON THE PROPERTY
A. Company shall be entitled to claim a mechanic’s and materialman’s lien on the Property under Chapter 53 of Texas Property Code for the amount of the Agreement, Proposal and/or Invoice and/or the value of labor and/or materials furnished to the Customer and Property. Alternatively, or in addition, Company shall be entitled to claim a constitutional lien under Article XVI, Section 37 of the Texas Constitution on the Property for the amount of the Agreement, Proposal and/or Invoice and/or the value of labor and/or materials furnished to the Customer and Property.
B. Customer agrees that it will execute all documents necessary in order for Company to perfect its mechanic’s and materialman’s lien on the Property.
C. Customer acknowledges that a mechanic’s and materialman’s lien may encumber homestead exempted property and may adversely affect Customer’s property rights. Customer should consult a licensed attorney to understand how mechanic’s and materialman’s liens may adversely affect the Property.
D. In the instance that Company is a prime contractor under the Agreement, the Agreement shall inure to the benefit of all persons who furnish labor or furnish material for the Company.
7. WARRANTY, CORRECTION OF WORK, LIMITATIONS AND EXCLUSIONS
A. Company warrants that: it will carry out all Work in accordance with acceptable industry standards; materials and equipment furnished under the Agreement, and Proposal will be new and of good quality unless otherwise required or permitted by the Agreement and/or Proposal; and Work will conform to the requirements of the Agreement.
B. Manufacturer’s warranty may be available to Customer on eligible HVAC systems, wine cooler systems, generators, appliances and/or products. Company does not warrant systems, parts and/or HV AC equipment that carry a manufacturer warranty, and all warranty claims on eligible parts and/or systems must be made with the manufacturer(s).
C. Company guarantees its Work as follows: labor for twelve (12) months, unless agreed to and stated otherwise in the Agreement.
D. In the unlikely event Customer should discover Work not conforming to the requirements of the Agreement and/or Proposal directly performed by Company during warranty period, Customer shall provide Company written notice of same. Company shall exercise its best efforts to correct Work promptly.
E. All warranty requests must be made in writing to Company. Customer may be asked to provide pictures and additional information to Company upon submission of warranty request.
F. Warranty only applies to areas, components and/or systems directly worked on by Company and described in Agreement, Proposal and/or Invoice.
G. Warranties extend only to the Customer and are non-transferrable.
H. Company shall be under no obligation to provide warranty services to Customer if payment to Company is not made when due.
I. Company shall not be liable to Customer for water, mold, mildew and/or other damage whatsoever caused by any delay in remedying a defect.
J. Customer is only entitled to repair and/or replacement of systems, equipment and/or Work directly provided by Company. Company shall not be liable for incidental or consequential damages resulting from Work provided under any agreement with Company.
K. Company shall not be responsible and/or liable to Customer for any of the following: 1) mold, mildew and/or any type of water damage whatsoever; 2) any damage as a result of drain stoppages; 3) Work provided by any third-party not subject to these Standard Terms and Conditions; 4) any defects and/or failures resulting from neglect, mistreatment and/or failure to maintain any Work provided by Company.
8. NO WARRANTY AS TO TIME OF COMPLETION
A. Company will use its best efforts to complete the Agreement in a timely manner, however, Company does not warrant the date of completion of Work and will not be liable for any damages, direct or consequential, for any delay whatsoever, however caused. Moreover, Company shall not be liable to Customer for any weather-related delays.
9. LAW AND JURISDICTION
A. This Agreement, Proposal and Invoice shall be governed and construed in accordance with the laws of the State of Texas, and the Company shall be entitled to a mechanic’s and materialman’s lien on the Property identified in the Agreement for the agreed price, together with interest, costs, and attorney fees/lawyer fees, litigation and witness attendance costs and expenses, expert witness fees and any other legal services and litigation costs.
B. All disputes and/or claims arising out of, or in connection with these Standard Terms and Conditions, Agreement, Proposal and/or Invoice, and/or any agreement relating hereto, shall be enforceable and subject to the exclusive jurisdiction of the Courts of the State of Texas. It is expressly agreed that the Company will be entitled to recover its attorney’s fees, expert witness fees, interest and costs in any proceedings to enforce these Standard Terms and Conditions and/or the Agreement. The Company shall also have the right to proceed against the Customer, any third party, and/or the Property in such other jurisdiction as the Company, in its sole discretion, sees fit for the purpose of securing payment of any amount due to the Company from the Customer. In such circumstances, the proceedings will be governed by the law (substantive and procedural) of such jurisdiction.
10. VALIDITY
A. These Standard Terms and Conditions shall be valid and binding for all Proposals, Contracts, Invoices, change orders, offers, quotations, and prices made by Company as of April 20, 2022, or at any later date. These terms and condition may also be incorporated by reference to the website of the Company at https://www.bayoucityac.com where they have been set out, without it being necessary to be duplicated in a standard form writing.