1. Client agrees that all terms in this Agreement are material terms, and that Client's breach of any term in this Agreement shall be a material breach.
2. Certified Restoration Services, Inc. (CRS) and Client (collectively the "parties") agree that any dispute or controversy, arising out of or in connection with this Agreement or any alleged breach thereof, shall be resolved by final and binding Arbitration administrated by National Arbitration and Mediation ("NAM") in accordance with NAM's Comprehensive Dispute Resolution Rules and Procedures and the Fee Schedule in effect at the time the claim is filed with NAM. Any award of the Arbitrator is final and binding, and may be entered as a judgment in any court of competent jurisdiction. NAM can be contacted at 800-358-2550. att: Commercial Claims Dept., to respond to any questions regarding the Arbitration process, as well as to request a copy of NAM's current Comprehensive Dispute Resolution Rules and Procedures and Fee Schedule; the parties agree that they shall be governed by Florida law; the parties agree to participating in the arbitration based on Written Submission only, and thus shall not participate in the arbitration based on In-Person or Oral Hearing; the parties agree that if there is any inconsistency between the terms in this Agreement and the NAM comprehensive arbitration rules, then the parties agree to be bound by the terms in this Agreement; the parties agree that they shall not retain or hire any person to represent them in their NAM arbitration that is a current or former hearing officer, arbitrator, attorney, staff member, or employee, of NAM.
3. Without waiving CRS's right to collect all amounts due and owing from Client, Client agrees and irrevocably directs its insurance carrier to pay all amounts that CRS states are due and owing directly to CRS and exclude Client's name from the check, so that the check shall be made payable only to CRS.
4. Client shall remain fully and solely responsible for the payment of all amounts to CRS.
5. Client shall pay CRS for all labor, materials, and rental equipment furnished or otherwise provided by CRS ("Work").
6. Any and all Work Orders signed by Client are fully incorporated herein.
7. Client shall pay CRS according to all the rates and terms contained herein.
8. Client agrees that it does not matter that CRS drafted this Agreement; Client agrees that nothing in this Agreement shall be construed against CRS as the drafter of this Agreement; Client agrees to all the terms herein as if Client was the drafter.
9. Client shall not touch, tamper, or modify with the equipment whatsoever, and Client shall remain responsible if anyone other than CRS or CRS's employees, independent contractors, or independent consultants touches, tampers, or modifies the equipment.
10. Client shall replace each damaged, neglected, misused, unexplained disappearance, vandalized, lost, or stolen rental equipment with a new identical model, or, if an identical model is not available, then with a more expensive model, at CRS's sole discretion.
11. Client shall continue to pay the daily rate for each damaged, neglected, misused, unexplained disappearance, vandalized, lost, or stolen rental equipment until the new identical, or more expensive, model has been both received and accepted by CRS; for purposes of being received and accepted by CRS, Client must receive a written and signed acceptance by CRS for each equipment.
12. Client shall compensate CRS for all costs for all travel, room, and board incurred by CRS and its consultants and independent contractors.
13. Client shall pay CRS for CRS and CRS's consultants and independent contractors for all travel time based on the labor rates herein, and shall pay CRS for CRS and CRS's consultants and independent contractors for all room and board at CRS's cost plus an additional fifteen percent as a travel accounting fee.
14. Client shall pay (and if applicable, apply for) all applicable taxes, permits, consents, licenses, and all other related or applicable fees and charges.
15. Client shall pay CRS each statement in full within five days of the date of each statement (except for the statement related to the price adjustment and all fees and liquidated damages which Client shall pay within five days of notice of completion or the date of that particular statement, whichever is sooner).
16. If Client does not pay each statement within five days of the date of each statement, then Client shall pay one point five percent interest per month on all outstanding amounts until paid in full.
17. Client shall have ten days from the date of each statement to contest each statement; if Client does not so contest each statement to CRS in writing via US Certified Mail Return Receipt Requested, then Client shall fully accept each statement as fully satisfactory and agree to the resulting balance in accordance with the count of Account Stated and as also evidenced in form one point nine three three of the forms for use with rules of the Florida rules of civil procedure effective for the year two thousand six, and thus each and every statement shall be fully and completely satisfactory to Client, and thus Client shall waive, and thus Client shall not subsequently raise, any claim or defense to the contrary.
18. Client agrees that Client shall not rely on any of CRS's websites, brochures, advertising, estimates, and any estimated time of completion of the Work, whatsoever.
19. Client shall both consult and get estimates from at least two other competing companies that do similar work like CRS.
20. Client shall have three days from the date of this Agreement to re-negotiate the terms of this Agreement with CRS; as such, there is no disparity in bargaining power and sophistication between CRS and Client, and Client shall have three days from the date of this Agreement to rescind this Agreement; if Client does not so rescind, then Client shall not subsequently rescind this Agreement.
21. Client agrees that Client has an open account with CRS.
22. Client agrees that he has not relied, and otherwise shall not rely, on any statements or documents from CRS or any of its independent consultants or independent contractors before signing this Agreement; Client agrees that the only statements and documents that Client has relied on in signing this Agreement are only the terms in this Agreement.
23. Client agrees that CRS is not in the business of repairing or replacing roofs, windows, doors, walls, and other breaches in the building, and any other damages to a building including, but not limited to, plumbing, electrical, gas, heating, and air conditioning.
24. Client agrees that Client is solely responsible for determining whether a breach, and any other condition that causes or may cause any water or mold related damage or related problems, exists in the structure.
25. Client represents to CRS that the property has no latent defects.
26. If Client is not the owner of the property where CRS is performing Work, and Client becomes aware of any latent defects, then Client agrees to disclose all latent defects to the owner of the property in writing via U.S. Certified Mail Return Receipt Requested within three days of Client becoming aware of any latent defect.
27. Client agrees that it is not the responsibility of CRS to determine whether any breach, and any other condition that causes or may cause any water or mold related damage or related problems, exists in the structure.
28. Client shall separately hire a licensed contractor to advise Client about any breach.
29. Client agrees that it is not CRS's responsibility to locate, determine, fix, seal, or advise Client of any breach.
30. If any breach is found by Client's licensed contractor, then Client shall pay a licensed contractor to permanently seal the breach.
31. Client agrees that CRS is not a contractor, that this Agreement is for an open amount (not a flat or fixed amount for all the Work), and that Florida Statute section seven one three point zero one five does not apply.
32. Client understands that by this agreement being for an "open amount," CRS is not giving Client, and thus Client shall not rely on, one specific total dollar amount to pay for all of the Work related to this Agreement; this Agreement is for an open amount until Client properly terminates the Work as provided herein. [If Client signs an agreement that lists all of CRS's rates for labor, equipment, and materials, and Client also signs an agreement with a work order number ("work order agreement" only as used for purposes of identification in this very limited context within these brackets so as to only differentiate the two agreements) that lists only certain rates (but obviously not all rates) for labor, equipment, and materials, and CRS charges Client for other labor, equipment, and materials that is in the agreement but not in the work order agreement, then Client agrees that Client shall still pay for all of the other labor, equipment, and materials that is in the agreement because Client signed the agreement, and thus Client shall not make the excuse or make any argument that Client is only obligated to pay the amount under the work order agreement and not the amount under the agreement.]
33. Client shall pay CRS for all Work until Client properly terminates the Work as provided herein.
34. If Client does not properly terminate the Work as provided herein, then Client shall pay CRS for all Work until CRS, at its sole discretion, decides to complete or terminate the Work.
35. In order for Client to properly terminate CRS's Work under this Agreement at any time for any reason, Client shall inform CRS in writing via US Certified Mail Return Receipt Requested, and CRS shall charge Client, and Client shall pay CRS, for all Work until CRS receives said written notice from Client.
36. If Client does not so inform CRS, then Client shall also fully accept all Work provided by CRS, and thus deem all Work to be fully satisfactory, and Client shall pay CRS for all amounts charged by CRS for said Work, and thus Client shall waive, and thus not subsequently raise, any claim or defense to the contrary.
37. Client acknowledges that CRS verbally advised Client of the scope of work.
38. Client shall separately hire Client's own environmental consultant who shall issue a specific written protocol for CRS to follow.
39. Client's environmental consultant shall observe CRS's work each and every day for at least one hour each and every day to make one hundred percent certain that CRS is following the protocol.
40. If Client does not hire Client's own environmental consultant, then in addition to all other rights and legal remedies that CRS has under this Agreement and under Florida Law, Client shall not complain about the length or amount of time that it took for CRS to perform the Work.
41. Client understands and agrees to CRS hiring its own independent environmental consultant even if Client hires Client's own independent environmental consultant, and that Client shall pay CRS for CRS's independent environmental consultant.
42. CRS's environmental consultant may observe CRS's Work as often as often as CRS's environmental consultant's schedule, at CRS's environmental consultant's sole discretion, permits.
43. Client shall only rely on Client's own environmental consultant to determine when the Work should be completed so that Client can give said termination notice to CRS via Certified Mail Return Receipt Requested as provided herein.
44. Although a person on behalf of Client may place a title next to his signature, or even if CRS writes or types said person's title on behalf of Client, each said signing person agrees that he is also signing in his individual capacity and is thus providing a personal guaranty.
45. As guarantors, each said signing person agrees to pay CRS in full for all Work related to this Agreement, and waives: (a) presentment, demand, protest, notice of protest, and notice of non-payment, (b) his homestead exemption, (c) any defense arising by reason of any defense of Client company, and (d) the right to require CRS to first proceed against the Client company to pursue any remedy in connection with the terms of this Agreement.
46. Client and each person signing this Agreement agrees that he is providing his homestead property (and all personal property located in the property that CRS performs work) as collateral to CRS for this debt and is providing each said signing person's homestead as a lien to secure this Agreement, and that if CRS files a Demand for Arbitration arising out of, or related to, this Agreement, then CRS may seek foreclosure on each signing person's homestead property.
47. CRS shall not provide any personal guaranty.
48. CRS shall not be liable, in law for any money damages, or in equity, for any delay in performance under this Agreement if such delay is caused by force majeure conditions; CRS shall not be liable, in law for any money damages, or in equity, for any delay in performance under this Agreement whatsoever.
49. If this Agreement is for a month-to-month period, then "month-to-month period" shall mean that each month has twenty-eight days and that the minimum period(s) that Client shall pay CRS shall be a minimum of every month (twenty-eight days); if the Work is completed or terminated (either by Client or by CRS as provided herein) before the end of the month, then Client shall still pay for all daily rates through the end of the month; by way of example, if Client or CRS completes or terminates the Work on the twenty-ninth day (which is one day into the second month-to-month minimum period, then Client shall pay CRS all of the daily rates for another twenty-seven days; Client should present this Agreement to Client's independent environmental consultant and/or contractor so that said persons can assist Client to make an informed decision as to when to terminate the Work so that Client can better maximize the terms of the minimum month-to-month periods to the best of Client's benefit.
50. If this Agreement is not on a minimum month-to-month period basis, then Client shall pay for all Work until the Work is completed or terminated as provided herein.
51. If this Agreement is for a month-to-month period, but another specific work order is not for a month-to-month period, then just that other specific work order shall not be on a month-to-month period, so that this Agreement shall continue to be on a month-to-month period.
52. For purposes of interest calculations only, per "month" shall mean the appropriate amount of time for each corresponding year so that the interest provision in this Agreement does not violate Florida's usury laws.
53. If the electrical power in Client's property is not working and CRS gets a generator to proceed with the Work, then Client shall pay CRS for a generator(s) pursuant to the rates herein; Client understands and agrees that the size of any generator that CRS uses is subject to availability, and that a generator may be smaller or bigger than what is needed; Client agrees that CRS is not an engineer to accurately determine what size is actually needed; Client understands that if CRS uses a small or smaller generator, then such a generator is to power only the equipment that CRS uses to do the Work and that Client cannot use the generator(s) to power air conditioning, refrigerators, televisions, phones, computers, elevators, or any other appliances, etc.; if CRS uses any large or larger generator which is/are more than enough to power the equipment, then Client understands and agrees that Client shall not complain that the generator is too big or too expensive; if Client complains about any generator being too big or too expensive (or even too small), and if Client is able to locate another generator from another rental company, then Client may terminate the use of CRS's generator by sending notice to CRS via Certified Mail, Return Receipt and Client shall continue to pay CRS or the generator an additional seven days from CRS's receipt of Client's letter, and after the seven days, Client shall still be responsible to pay for all delivery, installation, monitoring, and all other costs and expenses through the end of the seven days, and Client shall pay CRS for all rates herein regarding all installation-related services so that the equipment is powered-up and working; and Client shall continue to pay the daily rate for all equipment while the other generator is being hooked-up and thus the equipment is not powered-on at that time.
54. If CRS uses a generator to proceed with the Work, then Client shall pay CRS an initial deposit after this Agreement is signed, but before Work commences ("generator deposit"); said deposit shall be a replenishing deposit, meaning that after the deposit is used, whether in whole or in part, Client shall pay the remaining amount of the deposit immediately upon CRS's demand, which may be in writing by email, fax, or which may be made verbally by phone or in person; CRS's deduction of said deposit shall be reflected on CRS's statement(s) to Client; if Client pays all of CRS's statements to Client in full, including all interest, fees, and liquidated damages, and if Client still has money on deposit with CRS, then CRS shall give whatever remaining money Client has on deposit with CRS back to Client.
55. Client may also agree to pay a general deposit by credit card; a general deposit is different from a generator deposit in that the generator deposit is to be applied to any and all costs related to generators, while a general deposit can be applied to any and all rates contained herein; Client agrees that the general deposit is also a deposit that is to be replenished in full at all times and that, if Client pays for a general deposit by credit card, then Client agrees that CRS is authorized to charge Client's credit card as often as CRS wants, and without separate notice to Client, and Client shall be responsible for any and all fees, interest, or other damages arising out of, or related to, Client's credit card as a result of CRS's charges on Client's credit card (for example, this includes, but is not limited to, if CRS charges Client's credit card, and Client's credit card company charges Client an over-the-limit fee, or any interest, then Client agrees that CRS shall not be responsible to Client for any such fees or damages; Client may revoke CRS's authority to continue charging Client's credit card only by Client notifying CRS of same in writing by certified mail, return receipt requested, and CRS will stop charging Client's credit card on the date that CRS receives said certified letter.
56. Shift rates apply for generators; the rate for generators is for each generator, each day, and shown for only one shift; each shift is eight hours, and thus, given that there are twenty-four hours in one day, Client shall pay CRS for the daily rate times three shifts if Client has the generator for more than sixteen hours a day; thus if client returns the generator during the first eight hours of a particular day, then Client shall only pay CRS the daily rate for the generator times one rate shift; if Client does so between hours eight and sixteen, then Client shall pay CRS the daily rate for the generator times two; if Client does so after the sixteenth hour of that day, then Client shall pay CRS the daily rate for the generator times three; to be clear, other than the day that Client returns the generator, Client shall pay the listed generator rate times three (because there are three shifts in a day) for each day.
57. Client shall pay CRS's cost of delivery of each generator to and from Client's property at CRS's cost plus fifteen percent as a generator delivery accounting fee; Client understands that, especially due to local unavailability, even the location of the closest generator may be several hundred, or even thousands, of miles away, and that the delivery (even excluding the generator delivery accounting fee) may be very expensive, but that Client shall still pay for whatever that cost is (plus said fee).
58.*The delivery of equipment other than generators that is ten pieces of equipment or less and to any location within palm beach county Florida, shall be five hundred dollars each way.
59. The delivery fee for each piece of equipment above ten pieces within palm beach county shall be an additional twenty-five dollars per each piece of equipment each way.
60. The delivery of ten pieces of equipment or less to any location outside palm beach county shall be five-hundred dollars plus three dollars per mile from downtown west palm beach each way.
61. The delivery of more than ten pieces of equipment outside of palm beach county shall be an additional twenty-five dollars per each piece of equipment plus an additional three dollars per mile from downtown west palm beach each way.
62. For any rates for material that is not listed in this Agreement or that is to be determined, but that CRS uses or provides, Client agrees to pay CRS for the cost of each, plus an additional fifteen percent as a purchase accounting fee.
63. For any rates for labor or equipment that is not listed in this Agreement or that is to be determined, but that CRS uses or provides, Client agrees to pay CRS for the cost of each, plus an additional fifteen percent as an acquisition accounting fee, plus the price adjustment percentage as listed herein; for any outside services that CRS uses, Client agrees to pay CRS for the cost of each, plus an additional fifteen percent as an acquisition accounting fee, plus the price adjustment percentage as listed herein.
64. Client agrees that Client shall bear complete and full responsibility for security of any and all property, including any and all loss to damage to any and all property, and all loss to any and all personal property located in the or on the property.
65. Client understands that a variety of factors beyond CRS's control can affect the efficiency, performance, and time of the Work, including, but not limited to, breaches and other conditions in Client's residence, building, or other real property (property), or any other previous, or continuing, damage to Client's property (breaches).
66. Client shall indemnify and hold CRS, its consultants, independent contractors, and attorneys harmless from any and all actions, legal and equitable, brought by any party against CRS related to this Agreement.
67. Client agrees that Client is solely responsible for repairing any and all breaches and conditions in the property and repairing all damages that may affect the efficiency, performance and time of the Work.
68. Client understands that the longer the breaches or conditions exist, the longer it will take to dry out the property, or otherwise achieve a more efficient level of restoration or remediation.
69. Client agrees that CRS is not in the business of selling equipment.
70. Client may decide to purchase similar equipment from another company in lieu of renting the equipment from CRS.
71. Client understands that if Client is to purchase equipment, then Client would likely either have to try to sell the equipment, or find some place to store the equipment, or pay for storage, afterwards.
72. Client agrees that even if Client were to purchase any equipment, Client agrees that Client has no experience with the equipment and does not know how to monitor the equipment, or even have the experience to determine how many pieces of equipment are needed to do a particular job.
73. Client agrees that CRS and Client do not have a fiduciary relationship.
74. Client agrees that Client shall not rely on any representations by CRS prior to Client signing this Agreement unless CRS's representation is in writing and specifically addressed to and names Client, and specifically states that Client may rely on that specific representation, and is signed by CRS.
75. Client agrees that Client shall not rely on any representations by CRS after Client signs this Agreement unless CRS's representation is in writing and specifically addressed to and names Client, and specifically states that Client may rely on that specific representation, and is signed by CRS.
76. Client agrees that CRS does not own equipment, but CRS has access to equipment by renting equipment; Client agrees that CRS shall rent equipment from any equipment rental source (simply referred to as "equipment rental company"), and CRS shall in turn rent the equipment to Client at a higher rate.
77. To be clear, Client understands and agrees that Client shall pay the price adjustment on top of all the rates, including, but not limited to, the rates listed on the front of this Agreement.
78. Client agrees to and gives CRS a lien on all of Client's personal property located in or on Client's real property where CRS provides Work as collateral for Client's obligations herein, and Client waives CRS's requirement to file any UCC filing, and if any such personal property is lost, stolen, vandalized, or damaged whatsoever, then CRS shall not be responsible whatsoever; Client shall be responsible to take a detailed, itemized, full, and complete inventory of all personal property located in the property where CRS is providing Work, and shall have CRS sign said inventory list and, if Client does not, then Client shall not allege that CRS or any of CRS's independent consultant or independent contractors, stole any personal property.
79. Client acknowledges and agrees that CRS does not design or manufacture the equipment and not is not the agent of the companies that do.
80. Client fully accepts and agrees that CRS disclaims any and all representations and warranties, express or implied, with respect to the equipment, its durability, reliability, condition, merchantability, or fitness for any particular purpose.
81. Client accepts the equipment on an "as is, where is" basis, with "all faults" and without any recourse whatsoever against CRS.
82. Client assumes all risks associated with the equipment and releases CRS, its employees, independent consultants, independent contractors, and attorneys, from all liabilities and damages including, but not limited to, lost profits, personal injury, loss of use, and special, incidental, and consequential damages, in any way connected with the equipment, its operation or use, or any defect or failure thereof.
83. To the fullest extent permitted by law, Client indemnifies, releases, and holds CRS, its employees, independent contractors, independent consultants, and attorneys, harmless, and at CRS's request defends CRS, its employees, independent contractors, independent consultants, and attorneys, (with all counsel approved by each), from and against all liabilities, claims, losses, damages, and expenses, including, but not limited to, attorney's fees, costs, and expenses, however arising or incurred, related to any incident, any damage to property, injury to or death of any person, or any contamination or alleged contamination or any other health problem, or violation of law or regulation caused by or related to (a) the use, possession or control of the equipment during the time of the Work or (b) breach of this Agreement, whether or not caused in part by the active or passive negligence or other fault of any party indemnified herein and any of the foregoing arising or imposed in accordance with the doctrine of strict or absolute liability.
84. Client's indemnity obligations shall survive the expiration, termination, or otherwise end of this Agreement.
85. Client shall pay CRS for all repairs performed on the equipment on the basis of CRS's cost plus fifteen percent as a repair accounting fee.
86. CRS's cost shall be whatever amount the equipment rental company charges, and Client shall pay fifteen percent on top of that amount as the repair accounting fee.
87. CRS shall send a statement to Client for the price adjustment, all fees, and all liquidated damages, anytime after the end of the Work, or otherwise when CRS, at its sole discretion, provides Client with a statement or notice of completion.
88. CRS may provide a notice of completion to Client via email, fax, hand delivery, U.S. First Class Mail, or verbally over the phone or in person; Client agrees to pay said statement in full within five days of the date of said statement or notice of completion, whichever date is sooner; if Client does not so pay, then Client shall pay one point five percent interest per month on all outstanding amounts until paid in full; Client understands that payment to CRS is time of the essence; if Client does not pay said statement in full within thirty days of the date of said statement or notice of completion, whichever is sooner, then Client agrees to also pay twenty-five percent of said statement as liquidated damages; if Client does not pay said statement in full within sixty days of the date of said statement or notice of completion, whichever date is sooner, then Client agrees to pay thirty-five percent of said statement as liquidated damages; if Client does not pay said statement in full within ninety days of the date of said statement or notice of completion, whichever date is sooner, then Client agrees to pay forty-five percent of said statement as liquidated damages.
89. If CRS forgets to charge Client for any rate, fee, interest, liquidated damages, or any other charge in any statement, then Client agrees to accept and to pay for any and all subsequent statements from CRS that include whatever rates, fees, interests, liquidated damages, or any other charges that CRS forgot to previously include, and Client agrees to pay any and all said statements within five days of the date of each said statement, and that if Client does not pay CRS any of each said statement within five days of the date of each said statement, then Client shall pay one point five percent interest until each said statement is paid in full.
90. Client represents to CRS that Client has the money, or otherwise the financial ability, to pay CRS in full for all Work that CRS performs related to this Agreement.
91. If CRS, at its sole discretion, deems that the equipment should be replaced, then Client shall replace each rental equipment with a new identical model, or with a more expensive model if a new identical model is not available, at CRS's sole discretion.
92. Client shall continue to pay the daily rate for each equipment that CRS, at CRS's sole discretion, deems should be replaced, until the new identical or more expensive model has been both received and accepted by CRS; for purposes of being both received and accepted by CRS, Client must receive a written and signed acceptance by CRS for each equipment.
93. Client shall pay for garbage collection at the rate of five hundred dollars which includes up to fifteen trash bags that are fifty-five gallons in size; if more than fifteen bags are filled, then Client shall pay twenty-five dollars per each additional fifty-five gallon trash bag; Client shall not contest the method by which CRS fills a fifty-five gallon trash bag, or calculates the total trash amount.
94. Client shall also pay the labor rates in addition to said garbage collection rates.
95. Client shall also pay for garbage disposal at CRS's cost plus an additional fifteen percent as a garbage disposal accounting fee.
96. If Client is an association, then Client shall pay for all Work that CRS performs in all areas including all association property, all common areas, and all units owned by unit owners, and all parcels owned by parcel owners ("all work")(unit owners and parcel owners shall simply be referred to as "owners").
97. The terms association, association property, common areas, units, unit owners, and parcel owner shall have the meaning as defined in Florida Statute section seven one eight if the Work is in a condominium, Florida Statute section seven one nine if the Work is in a cooperative, and Florida Statute section seven two zero if the Work is in a homeowners association; Even if an owner separately signs another Agreement with CRS, and even if CRS files a lawsuit against a signing owner, Client (the association) agrees to also remain responsible for the payment of all sums to CRS for all Work CRS has performed in any and all owners' units or parcels; Client understands that if, by way of example, CRS were to perform Work in ten different units, and each of the ten owners did not fully pay CRS, then CRS would rather file just one lawsuit against the association for collection of payments on all ten units, rather than CRS file ten separate lawsuits against each of the ten unit owners, and that this would also serve judicial economy and not clog up the courts; accordingly, Client agrees that upon Client signing this Agreement, Client agrees to these terms to induce CRS to perform Work in all areas. Client acknowledges that Client understands and agrees to all of the rates, fees, interest, and liquidated damages herein. In addition to the price adjustment for the equipment, labor, and materials.
98. Client shall also pay CRS an inspection fee of fifteen percent on top of the price adjustment for the equipment.
99. Client understands and agrees that there may be other companies that might charge more or less than CRS; Client understands and agrees that Client shall do Client's own research to determine which company Client wants to contract with CRS advises Client to see Client's own physician and attorney in connection with this Agreement.
100. If any provision of this Agreement is held invalid or unenforceable, then only that specific provision (from period to semi-colon, or from semi-colon to semi-colon, or from semi-colon to period) shall be severed so that the remainder of this Agreement shall be enforced to the greatest extent permitted under Florida law.
101. If CRS files a Demand for Arbitration to collect any amounts due and owing, or to otherwise enforce its rights under this Agreement, then Client shall pay CRS's attorney's fees and costs.
102. Client agrees that CRS's attorney's rate of three hundred fifty dollars per hour is reasonable.
103. If CRS files an Arbitration Complaint (also identified as "Demand for Arbitration") against Client, and Client files a response to CRS's Demand For Arbitration, then Client agrees to post a bond with an A or better rated company for two times the amount of the outstanding amount that CRS states that it is owed in CRS's count for Breach of Contract in its Demand for Arbitration; if Client does not so post a bond and give a copy to CRS within ten days from the filing of Client's Response, then Client agrees that Client shall receive an automatic award against Client and in favor of CRS and include all amounts due to CRS including all past due amounts, interest, agreement fees, liquidated damages, attorney's fees, and arbitration fees and costs pursuant to the terms herein, and Client agrees that this consequence if fair and reasonable because Client can avoid an automatic award against CRS by simply obtaining said bond.
104. Client agrees that CRS shall not post a bond whatsoever, or otherwise Client agrees to waive its right to require CRS to post a bond.
105. Client agrees that Client's rights to seek and collect money damages from CRS under any legal theory is expressly limited to a maximum of five hundred dollars with no exception.
106. Client agrees that this Agreement is valid, binding, and legally enforceable.
107. CRS advises Client to obtain his own separate independent legal counsel in connection with this Agreement.
108. CLIENT AGREES THAT CLIENT DOES NOT HAVE ANY WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, FROM CRS.
109. Client agrees to not file any count and no affirmative defense for fraud, fraudulent misrepresentation, fraud in the inducement, negligence, negligent misrepresentation, violation of federal or Florida's deceptive and unfair trade practices act, and Florida's action regarding abuse of the elderly.
110. All the rates on the front of this Agreement are adjusted whereby Client agrees that Client shall pay an additional twenty-six point five percent on top of all the rates on the front side of this Agreement (hereby also referred to as either "adjusted rate" or "price adjustment.").
111. Client's payment to CRS is time of the essence.
112. Client agrees that all of the liquidated damages in this Agreement are fair and reasonable and thus not unconscionable.
113. Client understands that CRS rents the equipment from an equipment rental company, and uses independent consultants and independent contractors, and that independent consultants and independent contractors often do not provide invoices, bills, statements, notes, or other documents to CRS evidencing the work that they performed and, as such, Client understands that Client likely may not receive any such documentation from CRS; Client shall be solely responsible to keep a timesheet of all persons working each day, and shall have both CRS and each worker sign each timesheet for each day of work.
114. Client understands that Client does not have to pay any liquidated damages so long as Client pays strictly on time as provided in this Agreement.
115. All liquidated damages in this agreement are on a sliding scale; if the outstanding principle amount of each statement is not paid in full within thirty days from the date of each statement, then Client shall also additionally pay liquidated damages equal to twenty-five percent of the total outstanding amount of each statement; if the outstanding principle amount is not paid in full within sixty days of each statement, then Client shall pay liquidated damages equal to thirty-five percent of the total outstanding amount of each statement; if the outstanding principle amount is not paid in full within ninety days of the date of each statement, then Client shall pay liquidated damages equal to forty-five percent of the total outstanding amount for each statement; Client agrees that nothing, including, but certainly not limited to, the arbitration process, shall toll, or otherwise limit, the liquidated damages; for illustration purposes only, if CRS files a Demand for Arbitration, and Client still owes CRS money ninety days after the date of the statement, then Client shall pay an additional forty-five percent of that outstanding amount as liquidated damages; if Client wants to avoid being obligated to pay liquidated damages, then Client shall pay the outstanding amount to CRS in full, and then Client may be a Claimant and file a Demand for Arbitration against CRS, attaching a complete copy of this Agreement.
116. Each of the liquidated damage amounts are separate and in addition to the principle amount, fees, and interest, and other liquidated damages.
117. In order for Client to prove that CRS has received payment as provided herein, Client shall deliver each and every and all payments to CRS via Certified Mail, Return Receipt, Federal Express, or UPS and Client shall obtain confirmation of CRS's receipt of payment, as well as evidence of the date that Client delivered each payment.
118. Client agrees that Client shall not have any excuse for not paying CRS in full for any reason whatsoever including, but certainly not limited to, delay of any kind on the part of Client's insurance company.
119. Client understands and agrees that, in order to avoid paying liquidated damages, Client shall pay CRS for the outstanding principle amount, including fees and interest, and seek reimbursement from Client's insurance company.
120. Client agrees that this Agreement is fair, reasonable, and acceptable.
121. Client agrees that Client shall not mark, alter, modify, or cover up any decals, serial numbers, or insignia on the equipment, or remove any operational safety instructions.
122. "Incident" is any fine, citation, theft, accident, casualty, loss, injury, death or damage to person or property, claimed by any person, or entity that appears to have occurred in connection with the equipment. After an incident, Client shall (a) immediately notify CRS by phone, email, and in writing via Certified Mail, Return Receipt, and Client shall also immediately notify the police; (b) secure and maintain the equipment and the surrounding premises in the condition existing at the time of such incident, until CRS or its agents investigate; and (c) immediately submit to CRS copies of all police or other third party reports.
123. Client agrees that neither Client, nor Client's insurance company, shall rely on xactimate pricing or any other pricing, whether software or otherwise, or any other estimates provided by any other companies or individuals, as a defense to the rates herein, or to attempt to determine or attempt to establish the competitiveness or reasonableness of CRS's rates.
124. CLIENT AGREES THAT CRS DOES NOT WARRANT ANY LEVEL OF FITNESS, PURPOSE, ODOR, SMELL, CLEANLINESS, RESTORATION, REMEDIATION, DEHUMIDIFICATION, OR DECONTAMINATION WILL BE ACHIEVED.
125. If, after signing this Agreement, Client finds another source from where Client can get lower rates or more favorable terms, then Client's sole remedy is to properly terminate the Work as provided herein, pay CRS for all rates, interest, fees, and liquidated damages, and simply contract with another company.
126. This Agreement constitutes the entire agreement of the parties and supersedes all prior contracts or agreements, whether written or oral.
127. Client shall not rely on any estimates of any kind by CRS.
128. This Agreement shall not be amended or modified, in whole or in part, unless expressly stating that it is a modification expressly stating the exact and specific language to be modified, and expressly stating the exact and specific language agreed to by the parties in writing and signed by both parties.
129. Client agrees that no action or inaction by CRS regarding this Agreement shall constitute a waiver unless CRS expressly provides otherwise in writing.
130. CRS may assign all of its rights and liabilities under this Agreement to any person or entity without the consent of, and without prior notice to, Client. Client shall not assign any of his rights or liabilities under this Agreement whatsoever to any person or entity without the written consent of CRS or the assignee of CRS. 131. Facsimile signatures and copies of this Agreement shall be valid, binding, and legally enforceable.
132. All notices and payments that Client must provide to CRS under this Agreement shall be sent via U.S. Certified Mail, Return Receipt, to: Certified Restoration Services, Inc., 3200 S. Dixie Hwy, # I-307, West Palm Beach, FL 33405, or to any other address that CRS selects with written notice by U.S. First Class Mail to Client at Client's address as listed on the front of this Agreement.
133. The parties agree to limit the definition of "Written Submissions" to the Demand for Arbitration (with exhibits if any), the Response (with exhibits if any), legal memorandum, case law, this Agreement, responses and answers to interrogatories, responses and documents produced per requests for production of documents, responses to requests for admission, and bills/statements/invoices submitted by a party in support of its position; for reasons stated herein, the parties agree that the definition of written submissions shall not include witness statements, deposition transcripts, witness affidavits, expert reports, and expert statements/affidavits.
134. The parties agree that if the respondent does not include any counter-claim or affirmative defense at the time that the Response is served, then the Respondent shall be precluded from asserting any counter-claim and affirmative defense, and the Respondent also shall not file a Demand for Arbitration in a new arbitration (which would also cost more time and money) in an attempt to circumvent this said preclusion in the original arbitration, and if the Respondent files a lawsuit in court based upon the legal arguments that the Respondent could have raised in a counter-claim or affirmative defense in the original arbitration, then the Respondent agrees that the Claimant in the original arbitration shall not provide any discovery whatsoever to either the Respondent as plaintiff in the lawsuit in court, or to the defendant in the lawsuit in court, or to any other party in that lawsuit in court including but not limited to all subpoenas for depositions, depositions duces tecum, interrogatories, and requests for production of documents based on an "arbitration privilege" so as to preserve the privacy of NAM arbitration, and that if any subpoenas are served upon the Claimant, then the Respondent (the plaintiff in the Court case) agrees to file a motion for protective order based on an "arbitration privilege" so as to preserve the privacy of NAM arbitration, and to include and rely on this numbered paragraph in its motion for protective order, and if the party serving the subpoena is not able to obtain any discovery from the Claimant, then the Respondent (the plaintiff in the Court case) understands that there is a great likelihood that the party serving the subpoena may seek the remedy of dismissing all claims that party has against the party serving the subpoena and the Respondent agrees to have no recourse against the Claimant because, if the Respondent would have timely served his counter-claim and affirmative defenses in the original arbitration, then the Respondent would not have to deal with these issues.
135. If the Client fails to respond to a Demand for Arbitration, then the Client agrees to have all the claims against him deemed to be admitted and thereby waives his rights to assert other claims against CRS.
136. The parties agree that this Agreement shall be governed by Florida substantive law broadly with the greatest weight possible placed upon the terms of this written Agreement; the parties want to be bound by the terms that they have agreed to in this Agreement to the highest degree possible; to be clear, the parties expressly intend to be bound by their own agreed-upon terms in this Agreement more than Florida law as much as possible.
137. The parties agree that they shall not take any depositions, use or submit any expert witness affidavits or statements, or use or submit any lay witness affidavits or statements; given that the parties agree that any dispute that may arise between them is essentially a collection case based the rental of equipment and related services provided by CRS, the parties acknowledge and agree to this paragraph because they do not want to spend the additional time and money on depositions, experts, and witness affidavits and statements, and because the parties can still submit evidence through interrogatories, requests for production of documents, and requests for admission; it cannot be overstated that the parties' clear and strong intent is to resolve their dispute through NAM arbitration as soon, and as inexpensively, as possible.
138. The parties agree to not engage in discovery for more than ninety (90) days, and preferably much sooner if possible; the parties agree to only propound discovery via interrogatories, requests for production of documents, and requests for admission. The parties agree that all interrogatories will be answered, and all documents requested will be produced, and all requests for admissions will be admitted or denied, within twenty (20) days of the date of each request, and each party is limited to propounding only one (1) set of requests for answers to interrogatories, one (1) set of requests for production of documents, and one (1) set for requests for admission; the parties agree that each request for answers to interrogatories is limited to twenty (20) interrogatories, and each request for production of documents is limited to twenty (20) requests for documents, and each request for admission is limited to twenty (20) requests for admission; again, the parties' clear and strong intent is to resolve their dispute through NAM arbitration as soon, and as inexpensively, as possible.
139. The parties agree to having only one (1) Arbitrator to resolve all matters, regardless of the amount of money that the Claimant seeks so as to also spend less money on the arbitration process.
140. Given the parties' strong mutual desire to keep costs low and obtain a decision/award from the Arbitrator as soon as possible, the parties agree that their written submissions shall be limited to the Demand for Arbitration (with exhibits if any), the Response (with exhibits if any), legal memorandum, case law, the Agreement, responses and answers to interrogatories, responses and documents produced per requests for production of documents, responses to requests for admission, statements, and work orders.
141. The parties understand that NAM and the NAM arbitrator control the pace of the arbitration, but the parties agree that they also share a strong mutual desire to have an award given as soon as possible and hopefully no more than six (6) months after the date that the claimant files a Demand for Arbitration so that the parties will incur less attorneys' fees, costs, and arbitration fees.
142. Client authorizes for the address on signature page (front of AGREEMENT) for CRS to enter the property, furnish materials, supply all equipment and perform all labor necessary to preserve and protect my party from further damage.
143. Client authorizes for the address on signature page (front of AGREEMENT) for CRS to enter the property, for CRS, or CRS's employees, laborers, independent contractors, or independent consultants to monitor, maintain, reset, or remove equipment or materials at any time without exception during the period equipment or materials are in place regardless of the relevancy of its operation (even if Agreement is terminated by either party at CRS’s sole discretion).
144. Client assigns all insurance rights, benefits, and proceeds under any applicable insurance policies and coverages to CRS up to and for services rendered or to be rendered.
145. Client makes this assignment and authorization in consideration of CRS's Agreement to perform services and supply materials/equipment, and otherwise perform its obligations under this contract for all services rendered in part or in full, including not requiring full payment at the time of service.
146. Client agrees and directs their insurance carrier(s) to release any and all information requested by CRS, its representative(s) or its attorney to the direct purpose of obtaining actual benefits to be paid by client's insurance carrier for services rendered or to be rendered. CLIENT AGREES in this regard, Client waive their privacy rights.
147. Client agrees that any portion of work, deductibles, betterment, depreciation, or additional work requested by the undersigned, not covered by the insurance must be paid by the undersigned on or before the work is completed.
149. Payment terms are net-30 days. Late charges of 1.5% monthly are charged to any and all unpaid balances.
150. If payment is made directly to the Owner/Agent by the Insurer, it shall be endorsed over to CRS, within three (3) business days.