FBG HOME CARE STANDARD TERMS AND CONDITIONS:
- Acceptance of Agreement. Your agreement consists of any Service Proposal, approved work orders, these Standard Terms and Conditions, and any Payment Authorization (collectively, the “Agreement”). By signing and returning the Service Proposal, approving any FBG Home Care work order or submitting any work request (in all cases, whether verbally, in writing or electronically), you acknowledge that you have read, understood, accepted, and agree to be bound by these Standard Terms and Conditions. These terms and conditions will govern all work provided to you by FBG Home Care. Any reference in the Agreement to (i) “Client” means all owners of the real property located at the service address in the applicable Service Proposal or work order, (ii) “FBG Home Care” means FBG Home Care, LLC, a Texas limited liability company, (iii) “the parties” means FBG Home Care and Client, collectively, (iv) “Service Proposal” means the written Service Proposal signed by the parties, as may be amended from time to time, (v) “Package” means the applicable package(s) and option(s) selected by Client in the Service Proposal, (vi) “Covered Maintenance Services” means the maintenance services specifically stated as within the Package selected by the Client, (vii) “Non-Covered Work” means any and all work (e.g. labor, goods, equipment, materials) provided by FBG Home Care which is not explicitly stated as a Covered Maintenance Service under the Package selected by Client, (viii) “Work” means Covered Maintenance Services or Non-Covered Work, as the case may be, and (ix) “FBG Parties” means, collectively, FBG Home Care, its affiliates, subcontractors, vendors and each of their respective owners, partners, managers, directors, officers, agents, representatives, consultants, employees, attorneys and insurers.
- Covered Maintenance Services. The scope of the Covered Maintenance Services is subject to the terms and descriptions contained in your Service Proposal, along with the terms and conditions herein, and may vary depending on the Packages selected by the Client. Client becomes entitled to Covered Maintenance Services after the first payment is received and continues thereafter so long as Client makes timely payments. At signup, Client is required to sign and deliver to FBG Home Care written authorization in the form provided allowing FBG Home Care to auto-debit Client’s specified account, or auto-charge Client’s specified credit card, during the Term in order to cover the amounts due from Client for the Covered Maintenance Services corresponding to their Package (the “Payment Authorization”). All such amounts are due in advance of each calendar month during the Term and will be withdrawn from or charged to Client pursuant to the Payment Authorization on or around the 1st day of each calendar month during the Term (with exception of the first monthly installment, which will be due at the time of sign-up and prorated if sign up occurs mid-month). In the event payment that FBG Home Care is not able to process payments through the Payment Authorization for any reason, Client will be notified. If Client fails to immediately rectify this, the Covered Maintenance Services will be suspended at the end of the applicable month for which such Covered Maintenance Services have been prepaid, which may result in a lapse in Covered Maintenance Services provided to Client hereunder for which FBG Home Care will not be responsible. The applicable rates set forth in the Service Proposal are subject to change upon notice to Client.
- Non-Covered Work. If Client desires FBG Home Care to provide any Non-Covered Work, it agrees to submit a request electronically through the form found on FBG Home Care’s website, or as otherwise directed by FBG Home Care from time to time. It is within FBG Home Care’s sole discretion whether to perform any Non-Covered Work. If FBG Home Care is willing to provide such Non-Covered Work, it will provide Client with a work order for Client’s approval, electronically through a BuilderTrend account set up for Client, prior to scheduling and/or performing the same. FBG Home Care has no obligation with respect to any Non-Covered Work unless and until Client has signed and returned such work order pursuant to the processes and procedures then in place by FBG Home Care. Upon performing any Non-Covered Work, FBG Home Care will present an invoice electronically to Client through Client’s BuilderTrend account, which amounts are due immediately upon presentment and are separate and above any amounts paid or payable as per the Package. Notwithstanding any failure of the parties to adhere to the above-described processes, Client is responsible for paying for any Non-Covered Work requested or authorized by Client, whether verbally or in writing, at FBG Home Care’s published pricing then in effect.
- Service Hours. The Work provided by FBG Home Care under the Agreement will normally be performed between the hours of 8:00 A.M. to 5:00 P.M., Central Time, Monday-Friday (“Normal Hours”). Any Work requested by Client to be provided beyond Normal Hours, including on weekends or holidays, may be provided by FBG Home Care at its sole discretion and subject to additional charges at its then applicable rates, except as otherwise expressly provided in the Service Proposal.
- Conditions to Work. FBG Home Care’s service technician must receive full and safe access to the systems subject of the Work, with sufficient working space and access to utilities and all other accommodations reasonably necessary to provide the Work. If these requirements are lacking, or if FBG Home Care discovers abnormal conditions (such as a failure by Client to undertake recommended preventative maintenance and/or adhere to the applicable manufacturer or contractor recommendations) which make scheduled Work no longer practical in its reasonable estimation, or if Client has failed to comply with the requirements of the Agreement or any other agreement between the parties and/or their affiliates (including without limitation the timely payment of amounts owed), FBG Home Care is relieved of all obligations to provide such scheduled Work. Additionally, FBG Home Care is not be responsible for any delay, damage or failure to perform Work for any reason beyond FBG Home Care’s reasonable control (“Force Majeure”), including but not limited to unsuitability of access, labor shortage, equipment failure, unavailability or problems obtaining parts, consumables or supplies, inclement weather, acts of God, strikes, war, terrorism, and Client failures or delays. FBG Home Care cannot guarantee a specific completion date for Work performed hereunder. In the case of Covered Maintenance Services, if a scheduled service is missed due to any extended period of Force Majeure, such Covered Maintenance Services will be resumed as soon as practical after the cause of the Force Majeure has been resolved unless sooner terminated.
- Exclusions. Covered Maintenance Services include only the the cost of labor and, where specifically stated as part of the Package, the provision of certain goods and/or materials in furtherance of routine maintenance. Covered Maintenance Services do not include any repair, replacement or diagnostic work or any maintenance services under abnormal conditions (including any conditions described in Section 5 above) which, if requested by Client and provided by FBG Home Care, will be treated as Non-Covered Work in accordance with the terms and conditions in Section 3 hereinabove, except as otherwise expressly provided in the Service Proposal.
- Term. The Agreement will continue in full force and effect until terminated by Client or FBG Home Care (the “Term”) in accordance with this Section 7 so that FBG Home Care may perform, from time to time, the Covered Maintenance Services and such other Work as the parties mutually may agree in accordance with the terms of the Agreement. Either Client or FBG may terminate the Agreement (and by implication all Work thereunder), by giving the other party at least ninety (90) business days’ written notice of such termination. In the event that any work-in-progress is terminated prior to completion, FBG Home Care will be entitled to recover all of its costs and expenses incurred or expended in performing such Work as of the date of termination, plus 20%, without limitation to any other rights or remedies available at law. Client understands that the amount due for certain Covered Maintenance Services have been prorated over the course of a year to be payable by Client in 12 equally monthly installments and that, if Client has received all Covered Maintenance Services required by its Package in a given 12-month period but has not, by reason of termination of this Agreement, paid all monthly installments for the corresponding 12-month period, it will create a deficiency in the value received and the amount paid by Client. In that event, Client agrees to pay such deficiency in full to FBG Home Care immediately upon demand, but by no later than the scheduled termination date. Upon conclusion of the Term, the parties shall be relieved of all of their obligations under the Agreement, provided that (i) neither party hereto will be relieved of its respective obligations and liabilities arising from or incident to Work performed hereunder prior to the time the Agreement is terminated, all of which will survive; and (ii) the terms of the Contract which, by their nature, ought to survive termination, will survive termination, including but not limited to Sections 8-13 hereinbelow.
- Warranty and Limitation of Liability.
FBG Home Care warrants all Work will be provided in accordance with the written requirements and specifications set forth in the Agreement and all applicable laws. Provided that Client notifies FBG Home Care in writing of any non-conforming Work within 7 days after performance or delivery of the Work, as applicable, for any portion of the Work determined to be in breach of such warranties, FBG Home Care shall, at its option: (x) promptly re-perform or replace such Work within a reasonable time at no additional cost to Client, or (y) provide a refund to Client of amounts paid for portions of the Work that are in breach of the foregoing warranties. The parties agree that Client’s remedies and FBG Home Care’s obligations for any claims arising from alleged improper, inadequate or non-compliant Work are solely and exclusively as stated in this Section 8 and that failure by Client to timely notify FBG Home Care in writing of any non-conforming Work within time period prescribed shall be deemed a waiver by Client of its remedies for any such claims arising from this Agreement.
All items or work which are contracted for directly by Client, even if administered by FBG Home Care, are NOT warranted by FBG Home Care. This exclusion includes the original construction, even if it was provided by an affiliate of FBG Home Care. No Work performed by FBG Home Care hereunder will in any way expand the scope or extend the duration of any warranties that Client may have received from parties it contracted directly with. Where Client has separately contracted with one or more of FBG Home Care and its affiliates (each of FBG Home Care and such affiliates, a “FBG Related Party”), it is agreed that (i) in no event shall one FBG Related Party have any liability in respect of any of the other FBG Related Party’s obligations under its respective contract with Client or attributable in any way to the work performed thereunder, and (ii) Client shall look solely to the FBG Related Party that is party to the contract under which the liability arises in respect of, and the other FBG Related Party(s) shall have no liability for, any claim, loss, damage, cost or expense of any kind or nature arising from or otherwise related to work performed thereunder, notwithstanding the possible pooling of common resources or use of common officers, employees and/or subcontractors.
Any work provided by FBG Home Care which is (i) beyond the scope of its responsibilities as expressly provided in the Agreement and (ii) performed without profit to FBG Home Care or at a minimal charge as an accommodation to Client, is provided on an “AS-IS WHERE-IS” basis with no warranty and shall in no way be construed to expand FBG Home Care’s express obligations under the Agreement.
EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS SECTION 8, FBG HOME CARE DISCLAIMS ALL WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND WARRANTIES OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT ALLOWABLE BY LAW. CLIENT HEREBY WAIVES ANY CLAIM OR CAUSE OF ACTION AGAINST THE FBG PARTIES UNDER ANY THEORY OF IMPLIED WARRANTY OF GOOD AND WORKMANLIKE CONSTRUCTION AND AGREES THAT ANY SUCH IMPLIED WARRANTY, TO THE EXTENT IT EXISTS IN TEXAS, IS EXPRESSLY REPLACED BY THE TERMS OF THE WARRANTY PROVIDED HEREIN ABOVE TO THE MAXIMUM EXTENT ALLOWABLE BY LAW.
FBG HOME CARE SPECIFICALLY DISCLAIMS, AND CLIENT SPECIFICALLY WAIVES AND RELEASES THE FBG PARTIES FROM, ANY CLAIMS OR LIABILITY FOR PUNITIVE, SPECULATIVE, INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES TO ANY PERSON OR REAL OR PERSONAL PROPERTY, INCLUDING THE REAL PROPERTY UNDERLYING THE REGIME, EVEN IF FBG HOME CARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY, CLIENT AGREES THAT IF FBG HOME CARE SHOULD BE FOUND LIABLE TO CLIENT FOR LOSS OR DAMAGE RELATING TO OR CONCERNING THE WORK, FBG HOME CARE’S TOTAL AGGREGATE LIABILITY TO CLIENT SHALL BE LIMITED TO THE SUM PAID BY CLIENT TO FBG HOME CARE UNDER THIS AGREEMENT.
- Governing Law. The Agreement and all matters arising hereunder shall be governed by and construed in accordance with the laws of the State of Texas.
- Dispute Resolution. If a dispute regarding this Agreement cannot be resolved by mutual agreement, the parties shall attempt to resolve the dispute by submitting it to mediation in Harris County, Texas. Each party will be responsible for its own costs associated with such mediation, including attorneys’ fees, and one-half of any mediation fees. If the parties cannot agree on a mediator within 60 days after a request for mediation from either party or if all disputes are not resolved by mediation, such disputes shall be settled and determined by binding arbitration, as the sole and exclusive remedy of the parties. The arbitration shall be conducted by the American Arbitration Association (“AAA”) in Houston, Texas. The proceeding shall be conducted by a single arbitrator selected by a process designed to ensure the neutrality of the arbitrator. The decision of the arbitrator shall be final and binding on the parties. Judgment upon the decision and award rendered by the arbitrator may be entered in, and enforced by, any court of competent jurisdiction. Each party shall share equally the fees and expenses of the arbitrator; provided, however, the arbitrator may award to the prevailing party its costs, expenses and attorneys’ fees incurred in connection with such proceedings. If it is determined that the arbitration provisions are not enforceable, the parties agree that any and all disputes between them shall be resolved by a court of competent jurisdiction in Harris County, Texas, and EACH PARTY HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT. Notwithstanding the foregoing, Build FBG’s claims against Client for collection or payment for Work, damages (liquidated or otherwise) or any other amounts due or payable to the Company by the Client under the Agreement or any prior agreements between the parties, are not subject to mandatory dispute resolution provisions in this Section 10,
- Non-Disparagement. The parties shall act reasonably and in accordance with the principles of good faith in dealing with the performance of the Contract and resolving any conflicts that may arise. As such, Client agrees that neither it nor any of its family members will negatively review or otherwise disparage or assail the reputation, or cause anyone to question the condition, integrity, competence, professionalism, or work quality of any of the FBG Parties, through any medium including, but not limited to, internet bulletin boards, blogs or social media (such as Google, Facebook, Houzz, NextDoor, Yelp, Twitter or Reddit), unless and until liability of FBG Home Care is found in a final judgment in accordance with Paragraph 10 above, and then only to the extent of the fault found. Upon request by FBG Home Care, Client agrees to take such acts as FBG Home Care may require in order to remedy any violations of this Paragraph 11. The parties agree that in the event of breach of this Paragraph 11 by Client, there will be great difficulties in establishing and proving loss, as well as great inconvenience or even nonfeasibility in attempting to obtain an adequate remedy by the aggrieved party. Therefore, in respect to the kinds of conceivable harm that might be anticipated or actually caused by any such breach, the parties agree that the amounts that would be reasonable in the light of such harm, difficulties, and inconvenience or nonfeasibility as liquidated damages will be $10,000 per occurrence.
- The Agreement (including all attachments) constitutes the entire agreement between Client and FBG Home Care with respect to the subject matter thereof and supersedes all prior and contemporaneous communications regarding the same. No terms of the Agreement may be amended or modified except in writing, signed by authorized representatives of both FBG Home Care and Client. CLIENT AGREES THAT NO VERBAL STATEMENT, PROMISE, OR CONDITION NOT SPECIFICALLY LISTED IN THE AGREEMENT IS BEING RELIED UPON BY CLIENT.
- In the event of any conflict or inconsistency among these Standard Terms and Conditions and the Service Proposal or any work order, after interpreting the Agreement as a whole and, where possible, reconciling the conflicting or inconsistent provisions with the parties’ intent, the terms of these Standard Terms and Conditions will prevail. These Standard Terms and Conditions will become effective and operative on the earlier of the date of your Service Proposal, approved work order, or the date when FBG Home Care first commences the performance of any work for Client, even though the Agreement may not then have been fully reduced to writing. Notwithstanding the foregoing, FBG Home Care is not obligated to provide any specific work or services to Client unless and until a signed Agreement from Client has been accepted by an authorized agent of FBG Home Care.
- If any provision of the Agreement is determined to be to any extent invalid, illegal, or unenforceable, it will be deemed stricken from this Agreement. All other provisions of the Agreement will remain in full force and effect. The stricken provision will then be deemed replaced with one that is valid and enforceable and that comes closest to expressing the parties’ original intent as evidenced by the plain meaning of the stricken provision.
- Client may not assign any of its rights or delegate any of its obligations under the Agreement, except with the prior written consent of FBG Home Care. The Agreement shall be binding on, and shall inure to the benefit of, the parties to it and their respective legal representatives, successors and permitted assigns.
- Client agrees to pay all reasonable costs of collection, court, attorneys’ fees and other expenses incurred by FBG Home Care in the collection of any charges due under the Agreement or in connection with the enforcement of its terms.
- No failure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege granted hereunder preclude any other or further exercise of the same.
- The documents comprising the Agreement may be signed and/or initialed in multiple counterparts, each of which constitutes an original and all of which, collectively, constitute one document. Such documents may be signed and transmitted electronically using the electronic or facsimile signatures and such execution and delivery shall have the same force and effect as delivery of original signatures.
- Client authorizes any notices required by the Agreement to be delivered to Client via email to the address provided by Client and such notices will be deemed received when delivered.