2. Project Schedule. The approximate starting and completion date of the Project will be the date of the Invoice presented to the Customer along with this Agreement subject to the contingencies addressed in this Agreement, Change Orders, or OWNER failure to comply with their responsibilities under the Agreement (collectively, the “Project Schedule”). MQ shall furnish sufficient labor forces and shall complete the Project in accordance with the Project Schedule.
3. Definitions. The term:
3.1 “Contract Documents” shall include: (A) this Agreement; (B) the Invoice; (C) the Notice of Cancellation; (D) the Invoice Sum; (E) any Addenda issued prior to execution of this Agreement; (F) any modification issued after execution of this Agreement; and (G) any documents incorporated by reference in, or attached to, any of the foregoing materials. The intent of the Contract Documents is to include all items necessary for the proper completion of the Project.
3.2 “Damages” shall mean any actual damages, losses, liabilities, penalties, costs, expenses and attorneys’ fees or additional compensation for which a party, entity or person has incurred, sustained, or may become liable.
3.3 “Description of Services and Specifications” shall consist of the Project’s written requirements for materials, equipment systems, standards and workmanship, including, but not limited to any graphic or pictorial renditions of the Project, showing the design, location, and dimensions of the Work, including plans, elevations, sections, details, schedules and diagrams.
3.4 “Project” shall include, but is not limited to, furnishing of all labor, materials, tools, equipment, supervision and insurance required for the completion of this Agreement. The Project does not include the work, materials, or equipment required for any other construction, maintenance, or safety that may be required at the Project Site.
4. In General. MISTER QUIK shall perform the Work required under the Contract Documents, except to the extent specifically indicated in the Contract Documents to be the responsibility of others. MISTER QUIK’s field representative, as identified by MISTER QUIK in the Description of Services and Specifications, shall be authorized to act on MISTER QUIK’s behalf with respect to the Project.
5. Materials, Workmanship and Labor. Unless otherwise provided in the Contract Documents, including paragraph 29 of this Agreement,
MQ will furnish all labor, materials, tools, supervision and equipment required for the completion of the Project in exchange for the Payment stated on the proposed Invoice.
6. Limited Warranties.
ALL OTHER WARRANTIES (EXPRESS, IMPLIED, OR ORAL), INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND/OR IMPLIED WARRANTY OF HABITABILITY, ARE HEREBY EXCLUDED. THIS WARRANTY SETS FORTH THE ENTIRE OBLIGATION AND LIABILITY OF MISTER QUIK AS TO THE SALE OF THE PRODUCTS. IN NO EVENT SHALL MISTER QUIK BE LIABLE FOR SPECIAL INCIDENTAL INDIRECT OR CONSEQUENTIAL DAMAGES, IT BEING UNDERSTOOD THAT THE OWNER MAY CHOOSE TO MAKE ARRANGEMENTS TO REDUCE ANY SUCH DAMAGES IT MAY INCUR. MISTER QUIK’S LIABILITY FOR ANY DAMAGES UNDER THIS WARRANTY WILL NOT EXCEED THE TOTAL PURCHASE PRICE FOR THE PRODUCTS. THIS WARRANTY DOES NOT AFFECT STATUTORY OBLIGATIONS WHICH MAY NOT BE DISCLAIMED OR LIMITED BY APPLICABLE LAW. ACKNOWLEDGMENT PURSUANT TO MAGNUSON-MOSS FEDERAL WARRANTY ACT: OWNER ALSO ACKNOWLEDGES THAT HE HAS BEEN GIVEN THE OPPORTUNITY TO INSPECT THE WARRANTY PRIOR TO THE EXECUTION OF THIS CONTRACT. MISTER QUIK PROVIDES A SEPARATE COPY OF THE WARRANTIES UPON OWNER’S REQUEST.
7. Description of Services and Specifications. The OWNER acknowledges that as of the signing this Agreement, the Invoice proposal is complete and constitutes the full description of services and specifications for the project.
8. Project Site Access. OWNER represents it has authority to and does grant permission for MQ, together with its subcontractors, workers and material suppliers, to enter the Owner’s property for the purpose of completing the Project. The OWNER shall not interfere with MQ’s completion of the Project and shall not issue instructions regarding the construction means, methods or sequences. OWNER represents and acknowledges that in certain circumstances, the Work may result in changes to the Project.
9. Coordination of Construction. The OWNER is solely responsible for coordinating the completion and timing of work performed by other contractors at the Project Site that is necessary for MQ to perform its Work for the Project
10. Taxes and Easements. The OWNER shall pay for all taxes, special assessments and charges associated with the Project The OWNER shall also secure and pay for all necessary approvals, easements, and changes required for the construction.
11. Information Required of OWNER. If requested by MQ, OWNER shall furnish surveys to describe the physical characteristics, legal limitations and utility locations for the site of the project and a written legal description of the site. If requested by MQ the surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent drainage, rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site, locations, dimensions and necessary data with respect to existing buildings and other improvements and taxes; and information concerning available utility services and lines, both public and private, above and below grade. MQ shall be entitled to rely on the accuracy of information furnished by OWNER.
12. Change in Services. Subject to the terms of paragraph 13, OWNER may modify the scope, extent or character of the project MISTER QUIK may require the execution of a change order to memorialize the modification (“Change Order”). MQ may adjust the job Cost pursuant to any such Change Order. No Change Order shall be effective unless in writing executed by MQ and OWNER.
13. Changes Incorporated. Any executed Change Order shall become part of this Agreement Should the parties be unable to mutually agree to the necessary modification, MQ may proceed with performance of its obligations under the Proposal and OWNER shall continue to make all other payments due and owing under this Agreement In the alternative, OWNER or MQ may terminate this Agreement as provided herein.
14. Payment Obligations. OWNER shall submit payment to MQ in the amount stated on the proposed Invoice. OWNER acknowledges that MQ shall be under no obligation to continue work if OWNER fails to pay as agreed and that such failure constitutes a material breach of this Agreement. OWNER consents to allow MQ to leave any credit card, debit card, or other payment method on file for use to pay for future services and transactions on OWNER’S account. Any amounts unpaid within 30 days after the work completion date shall bear interest from the date of the invoice at a rate of eighteen percent (18%) per annum. The Owner shall be charged a $200 penalty for all bounced checks and interest at a rate of 18%, in addition to all other rights and remedies that may be available to MQ.
III. CLAIMS OR DISPUTES
15. In General. In the event that OWNER defaults in its performance or observance of any of the terms, conditions or obligations contained in this Agreement, or in the event that MQ has to employ attorneys to enforce any part of this Agreement MQ shall be entitled to recover its reasonable attorneys’ fees, interest and costs incurred in connection therewith, including litigation, post-judgment proceedings, and appeals if MQ prevails against the OWNER.
16. Litigation/Venue. Each party agrees that neither shall commence any litigation or any other type of proceedings against the other party over a dispute arising out of this Agreement except in a state court located in Marion County, Indiana, or the United States District Court in the Southern District of Indiana.
IV. TERMINATION AND SUSPENSION
17. Termination for Convenience. MQ and OWNER may terminate this Agreement at any time, without cause, by providing 60 days’ prior written notice to the other party. In the case of termination of MQ for Owner’s convenience or without cause, MQ shall be entitled to receive payment for all amounts due MQ for all work already performed pursuant to this Agreement together with all costs incurred through the date of termination as well as MISTER QUIK’s estimated profit on work yet to be performed.
18. Termination for Cause. This Agreement may also be terminated by a party upon not less than 5 days’ written notice should the other party file for bankruptcy or Materially Breach this Agreement. For the purposes of this Agreement “Materially Breach” shall include, but not be limited to, failure to pay according to the Contract Documents.
19. Termination Due to Delay or Suspension. If MISTER QUIK’s work under this Agreement is stopped, suspended, or delayed for a period of 5 days pursuant to an order of any court or other public authority having jurisdiction, or as a result of any force majeure, act or neglect of OWNER, fire, unusual delay in deliveries, unavoidable casualties, or other causes beyond the control of MISTER QUIK or its agents or employees, then MISTER QUIK shall be entitled to a reasonable extension in the project Schedule pursuant to a change order. In the alternative, MISTER QUIK may, upon not less than 7 days’ written notice to OWNER, terminate this Agreement and recover from OWNER all amounts due MISTER QUIK for all work performed.
20. Termination Due to Concealed Conditions. If, at any time during the project, MISTER QUIK or OWNER encounter conditions of an unusual or dangerous nature on the project Site which differ materially from those ordinarily found to exist in the construction activities of the character provided for in the contract documents (“Concealed Conditions”), this Agreement shall automatically terminate and both parties shall be excused from any further performance. Concealed Conditions, include, but are not limited to, oil, natural gas, petroleum, oil tanks, waste, septic tanks, chemicals, mold, and hazardous materials.
21. In General. To the fullest extent permitted by law, OWNER covenants and agrees to defend, indemnify and hold MISTER QUIK harmless of and from any and all claims and damages related to the project, provided that such claim or Damage is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property caused by the negligent acts or omissions of OWNER, anyone directly or indirectly employed by OWNER or anyone fortt whose acts OWNER may be liable. Owner’s agreement of indemnity under this section shall survive Owner’s final payment to MISTER QUIK and the expiration or termination of this Agreement.
22. Image Release. OWNER authorizes MISTER QUIK to use and publish photographs, images, or recordings of the work in any medium for any purpose whatsoever and releases MISTER QUIK from any claims arising out of the use of same.
23. Excuse of Performance. MISTER QUIK is excused from compliance with these terms and conditions if there is a delay caused by (A) OWNER-directed modification; (B)OWNER’s breach of the terms of this Agreement (C) fire; (D) actions by a public authority; (E) war, (F) adverse weather conditions; (G) shortages of materials or labor; (H) acts of God or (I) any other cause of delay beyond the control of MISTER QUIK
24. Severability. In case any one or more of the provisions contained in this Agreement shall be judicially determined to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein, and any other application thereof shall not in any way be affected or impaired thereby.
25. No Assignment. OWNER shall not assign this Agreement to any other person or entity without the written consent of MISTER QUIK If, however, MISTER QUIK provides written consent under this paragraph, this Agreement shall be binding upon the assignee.
26. Applicable Law; Venue. The laws of the State of Indiana shall govern the terms and conditions of this Agreement.
27. Notice to Proceed. OWNER’s execution of this Agreement constitutes notice to MISTER QUIK to proceed with the Work required by the Contract Documents and/or this Agreement.
28. No Third-Party Beneficiary Rights. This Agreement shall not create any third-party beneficiary rights for non-signatories.
29. Contractor Statement; Insurance. If the Work includes the need for any sewer and excavation services, MISTER QUIK subcontracts with Wharff Excavating, LLC to furnish the labor, services, material, equipment, or machinery necessary to install the sewer line and perform the excavation. If a subcontractor is retained to assist in WORK paid, in whole or in part, from the proceeds of an insurance policy, neither Mister Quik nor the third party may initiate or pursue a claim with the insured consumer’s insurance company.
30. License or Permit. If a license or permit is necessary for any part of the Work, the Agreement shall be conditioned upon the appropriate party obtaining the necessary licenses or permits before any work under the Agreement commences.
31. Notice of Cancellation. You may cancel this Agreement at any time before midnight on the third business day after the later of the following: (A) The date this Agreement is signed by you and MISTER QUIK; (B) If applicable, the date you receive written notification from your insurance company of a final determination of whether all or part of your claim or this contract is a covered loss under your insurance policy. See attached notice of cancellation form for an explanation of this right.
HVAC License: H0020150
Plumbing License: CO50900281
General Contractor: GC1200161
Electrical License: E0020131
Signature of Supplier: /s/ Brad Huff