TERMS AND CONDITIONS
These Terms and Conditions (collectively, the “Terms”) by and between FANNON ENTERPRISES, INC., a New Mexico corporation, d/b/a BIO REMEDIES (“Bio Remedies”) and the undersigned (the “Client”), are entered into to be effective as of the Effective Date (as defined below). These Terms shall govern those services (collectively, the “Services”) more particularly described in, and provided pursuant to, that certain cost estimate, attached to these Terms (the “Estimate”). As used herein, the Effective Date shall mean the date on which Client and Bio Remedies approve the Estimate. Prior to the Effective Date, the Estimate shall not be considered effective, nor shall there be considered any acceptance thereof. In the event of any conflict between the Estimate and any other writings by, between, from, or among the Client, Bio Remedies, and/or any of their employees, agents, or other representatives regarding the Services, these Terms shall control. No amendment to these Terms will be effective unless it is in writing and signed by Bio Remedies and the Client. The Estimate and these Terms comprise the entire agreement between the parties hereto and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
1. ESTIMATES. The Client shall have a period of seven (7) days commencing on the date that Bio Remedies delivers (which delivery may be by regular mail, third-party delivery service, in person, or electronic mail) the Estimate to the Client, to return its duly-executed, original signature of the Estimate to Bio Remedies. If Bio Remedies does not receive the Client’s duly-executed, original signature of the Estimate within the above-described 7-day period, the Estimate shall not be enforceable on Bio Remedies and shall automatically terminate and be of no force or effect. THE CLIENT ACKNOWLEDGES AND AGREES THAT ONCE THE ESTIMATE CONTAINING THESE TERMS IS EXECUTED BY THE CLIENT, THE ESTIMATE: (I) SHALL BE DEEMED TO CONSTITUTE THE CLIENT’S EXPRESS APPROVAL to commence WORK TO COMPLETE THE SERVICES DESCRIBED THEREIN for the amount described (THE “PRICE”), AND (II) is considered a legal, valid, and binding contract subject to these Terms.
2. PRICE AND PERFORMANCE. Bio Remedies shall only be obligated to perform the Services expressly described in the Estimate and no others. Once the Estimate is executed by the Client, any addition, subtraction, variance, or other modification of the Services described therein requested by the Client shall allow Bio Remedies to, in its sole discretion and effective upon notice to the Client: (i) terminate its obligation to provide the Services, and/or (ii) make certain modifications to the total amount payable [should “total amount payable” mean “Price”?] by the Client for the Services, if any, changes in the methods or materials used to perform the Services, or other modifications as may be determined by Bio Remedies in its sole discretion. Notwithstanding the foregoing or anything contained in these Terms to the contrary, if a Force Majeure Event (as defined below) shall occur, Bio Remedies, in its sole discretion, shall have the right (but not the obligation) to increase, change, or otherwise modify the Estimate and the total amount payable by the Client for the Services for such a Force Majeure Event, and such increase, change, or modification shall be binding on the Client without need for any amendment or other signed writing.
3. PAYMENT. Prior to Bio Remedies commencing any of the Services , the Client shall pay to Bio Remedies an amount equal to fifty percent (50%) of the Price, which payment shall be made in immediately available funds or by electronic credit card payment. If the Services relate to a residential property, the Client shall pay the remaining fifty percent (50%) of the Price within five (5) days of the completion of the Services, as determined by Bio Remedies in its sole discretion. If the Services relate to a commercial property or project, then the Client shall pay: (i) an additional twenty five percent (25%) of the Price upon notice to the Client by Bio Remedies (which notice may be by telephone, text message, or email) that one-half of the Services have been completed, as determined by Bio Remedies in its sole discretion; and (ii) the final twenty five percent (25%) of the Price within five (5) days of the completion of the Services, as determined by Bio Remedies in its sole discretion.
4. PAYMENT TYPE. All payments required by the Client to be paid hereunder shall be made by the Client to Bio Remedies in the form of a personal or business check (or cashier’s check, if requested), by wire transfer, or by credit card (Mastercard, Visa, and Discover cards accepted). All returned checks shall incur a one-time penalty fee of $150, payable by the Client to Bio Remedies within five (5) days of receipt of written notice thereof. Payments by credit card in an amount of $500 or more will result in a three (3%) service charge.
5 LATE PAYMENT INTEREST; COLLECTIONS. Interest shall accrue on any amount owing after the due date set forth above at the rate of TEN percent (10%) per year OR THE MAXIMUM AMOUNT ALLOWED BY APPLICABLE LAW, WHICHEVER IS HIGHER. ONCE A REQUIRED PAYMENT IS THIRTY (30) days past due, Bio Remedies MAY, IN ITS SOLE DISCRETION AND IN ADDITION TO ANY OTHER RIGHTS OR REMEDIES THAT MAY BE AVAILABLE TO BIO REMEDIES HEREUNDER, AT LAW, OR IN EQUITY, commence litigation or employ ONE OR MORE attorneys to collect SUCH PAST DUE AMOUNTS from THE Client, AND THE Client shall pay any and all costs and attorney’s fees incurred by Bio Remedies IN CONNECITON WITH ANY OF the FOREGOING OR ANY OTHER COLLECTION OR ENFORCEMENT ACTIONS. Any form of past due payment shall give Bio Remedies, in its sole discretion, the right to place a mechanic’s lien upon the subject property. THE Client’s execution of the Estimate is considered legal notice by which THE Client acknowledges and agrees to Bio Remedies’ right to file such a mechanic’s lien.
6. THE CLIENT’S COVENANTS, REPRESENTATIONS, AND WARRANTIES. For as long as the Services remain uncompleted, the Client shall provide Bio Remedies and its employees, staff, contractors, subcontractors, and other representatives unimpeded, uninterrupted, and safe access, in each case, as determined by Bio Remedies in its sole discretion (“Proper Access”), to the site (including any buildings or other improvements located thereon) where the Services shall be performed. Bio Remedies shall not be liable for any injury to persons (including, without limitation, death) or damage to property that may be incurred by the Client or any other party because of the failure to provide Bio Remedies with Proper Access. The Client represents and warrants that the site (including any buildings or other improvements located thereon) complies with all applicable laws, including, without limitation, any and all occupational health and safety laws and any other relevant safety standards, regulations, or legislation. The Client shall obtain, at the Client’s sole expense, any and all licenses and approvals that may be required for the Services, unless expressly waived in writing by Bio Remedies.
7. DAMAGES. The Client agrees that any breach of these Terms by the Client shall result in damages to Bio Remedies including, but not limited to, direct, incidental and consequential damages arising from such breach. The Client agrees that Bio Remedies’ claims for damages may include, but shall not be limited to: (i) loss of time, resources, equipment, and overhead used in mobilizing, purchasing materials, and preparing plans; (ii) loss of reasonably anticipated profits from delivery of the Services; (iii) losses arising from or related to delays or lost time due to Bio Remedies’ employees, agents, and affiliates being required to participate in any prosecution, litigation, arbitration, or other process to pursue remedies or damages arising from the Client’s breach; and (iv) attorneys’ fees and court costs necessitated by or related in any way to the Client’s breach, including, without limitation, any and all costs incurred by Bio Remedies to pursue and perfect a mechanic’s lien.
8. LIMITATION OF WARRANTY. The Client hereby acknowledges that Bio Remedies makes no warranty as to the truth or accuracy of statements made by any agent, affiliate, contractor, or subcontractor of Bio Remedies, and that Bio Remedies shall not be liable for any statements, whether written or oral, made by any individual other than Bio Remedies’ President, Ken Fannon. The Client hereby unconditionally, irrevocably, and forever discharges and releases Bio Remedies, its directors, partners, officers, shareholders, employees, subcontractors, consultants, advisors, attorneys, agents, successors, and assigns from any and all claims, suits, damages, causes of action, remedies, liabilities, and right to performance whatsoever, relating to or in any manner arising from, in whole or in part, any inaccuracy, inconsistency, misstatement, or any other form of misrepresentation made to the Client by any individual other than Bio Remedies’ President, Ken Fannon.
9. SOPHISTICATED CUSTOMER. The Client is a sophisticated customer, and understands based upon experience that by purchasing the Services to be delivered by Bio Remedies, the Client may be exposed to certain risks and liabilities associated with the performance of such Services. By reason of this knowledge and experience, the Client has evaluated the risks of the Services to be performed by Bio Remedies, has formed an opinion based solely upon the Client’s own knowledge and experience and not upon any representations by Bio Remedies, its employees, agents, or representatives, and has chosen to proceed with the Services.
10. ASSIGNMENT. The Client shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Bio Remedies, which consent may be withheld or denied in Bio Remedies’ sole discretion. Any purported assignment or delegation in violation of this paragraph shall be null and void ab initio. No assignment (including any assignments for which Bio Remedies has provided its prior, written consent) shall relieve the Client of any of its obligations under these Terms.
11 INDEMNIFICATION. THE CLIENT HEREBY indemnifIES, defendS, and holdS HARMLESS BIO REMEDIES, its directors, PARTNERS, officers, SHAREHOLDERS, employees, SUBCONTRACTORS, CONSULTANTS, ADVISORS, ATTORNEYS, agents, SUCCESSORS, and assigns (collectively, the "Indemnified Parties"), from and against any and all claims, demands, suits, causes of action, ARBITRAL PROCEEDINGS, losses, liabilities, obligations, damages, penalties, judgments, deficiencies, costs, FEES, PENALTIES, and expenses (including, without limitation, interest, penalties, reasonable attorneys' fees and amounts paid in settlement) (COLLECTIVELY, “LOSSES AND LIABILITIES”) to which any one or more of the Indemnified Parties may become subject, OR WHICH ARISE out of or ARE related IN ANY WAY to THESE TERMS, THE ESTIMATE, OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, CLAIMS OF PERSONAL INJURY AND DEATH. THE INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN SHALL EXPRESSLY EXTEND TO LOSSES AND LIABILITIES CAUSED BY OR ARISING FROM THE NEGLIGENCE OF ANY INDEMNIFIED PARTY, BUT SHALL SPECIFICALLY EXCLUDE INDEMNIFICATION RELATED TO ANY INDEMNIFIED PARTY’S gross negligence or willful misconduct.
12. TERMINATION. Upon execution of the Estimate, the Client shall have no right to terminate the arrangement of Services, these Terms, or the Estimate, and Bio Remedies shall under no circumstances be obligated to provide a refund to the Client for any purported termination of the agreement to provide the Services. Bio Remedies may, in its sole and absolute discretion, terminate the Estimate and its agreement to provide Services at any time prior to commencement of work in respect of the Services (“Commencement of Work”). Upon the Commencement of Work and at any time thereafter, Bio Remedies may, in its sole and absolute discretion, terminate its obligations hereunder to provide Services if: (i) the Client fails to pay any amount when due; (ii) the Client fails to execute and deliver to Bio Remedies any legal or other documents required by Bio Remedies to evidence a modification of the Services that, in Bio Remedies’ sole discretion, is necessary or convenient to complete the Services or is due to a change in site conditions identified after the Commencement of Work that make the contemplated Services unpractical or impossible to perform; (iii) the Client has not performed or complied with any provision of these Terms; (iv) the Client is capable of, but declines to, correct any issue(s) resulting in work stop at the site; or (v) the Client becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
13. DISCLAIMERS OF WARRANTIES. Any and all Services provided or performed, and any materials delivered by Bio Remedies shall be subject to the following disclaimer: all expressed or implied warranties including, but not limited to (i) warranties of merchantability; (ii) warranty of fitness for a particular purpose; (iii) warranty of title; or (iv) warranty against infringement of intellectual property rights of a third party; whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise, are hereby, in each case, specifically and expressly disclaimed by Bio Remedies to the fullest extent allowed by law.
14. LIMITATION OF LIABILITY. In no event shall Bio Remedies be liable to the Client or to any third party for any loss of use, revenue or profit or diminution in value, or for any consequential, incidental, indirect, exemplary, special or punitive damages whether arising out of breach of contract, tort (including, without limitation, negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not such party has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose. In no event shall Bio Remedies’ aggregate liability arising out of or related to these Terms, whether arising out of or related to breach of contract, tort (including, without limitation, negligence) or otherwise, exceed the aggregate amount actually paid to Bio Remedies for the Services.
15. SUBCONTRACTOR. Bio Remedies may subcontract any or all of the Services to be provided to the Client without the Client’s consent or approval.
16. NOTICE OF WORK STOP OR CANCELLATION. Performance of all Services shall cease immediately (and Bio Remedies shall have no liability to the Client therefor): (i) upon the discovery of any dangerous or hazardous substances, materials or conditions, at or near the site (including any buildings or other improvements located thereon) where Services are to be performed; (ii) if such site is determined by Bio Remedies to be unsafe because of any danger or hazard including, but not limited to, identification of asbestos, exposed live electrical wires, mold, or trip and fall hazards; or (iii) if Bio Remedies determines, in its sole discretion, that the Client has not provided Bio Remedies and/or its employees, staff, contractors, subcontractors, or other representatives Proper Access to the site. The Services will re-commence at the election of Bio Remedies once the danger or hazard has been eliminated by the Client in a manner satisfactory to Bio Remedies. If the safety issue(s) cannot be remedied to the satisfaction of Bio Remedies, Bio Remedies may terminate the Services. In such event, Client shall nonetheless pay on demand the Price for all Services performed until termination, as well as for any and all parts and materials purchased to complete the Services.
17. SETOFF AND WITHHOLDING PAYMENT. The Client acknowledges and hereby agrees that Bio Remedies may set off any amount owed by Bio Remedies to the Client against any outstanding amount due by the Client to Bio Remedies. The Client further acknowledges and hereby agrees that the Client is not entitled to withhold payment of all or any portion of the Price due to a dispute, complaint, or other claim against Bio Remedies.
18. Complaints. If the Client contends Bio Remedies has breached these Terms or otherwise alleges a dispute involving Bio Remedies regarding or relating to the Services, the Client shall provide Bio Remedies not less than thirty (30) days’ written notice from the date of the incident giving rise to the grievance, informing Bio Remedies of the Client’s contentions as to the nature of the dispute and the facts surrounding the dispute. The Client must provide contact details, including the Client’s phone number, email address, and mailing address, in order for Bio Remedies to contact the Client regarding the dispute. Within thirty (30) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference, each party shall be represented by a person having authority to agree to a resolution of the dispute. A failure by the Client to comply with the terms set forth in this paragraph shall constitute a waiver and release by the Client of any right to bring such claims against Bio Remedies at a later date.
19. ALTERNATIVE DISPUTE RESOLUTION. If Bio Remedies and the Client are unable to resolve any complaint, dispute, or allegation of breach of contract through informal dispute resolution conference(s) between the parties, Bio Remedies and the Client hereby agree that any controversy or claim arising out of or relating to these Terms, or the breach thereof, shall be referred to mediation before, and as a condition precedent to, the initiation of any arbitration or adjudicative action or proceeding. Mediation shall occur in Pima County, Arizona and shall be administered by a mediator mutually agreed upon by the parties. If Bio Remedies and the Client are unable to resolve such controversy or claim through mediation, then the claim or controversy shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. All arbitration proceedings shall be conducted in Tuscon, Arizona, which the parties agree is a mutually convenient, neutral location.
20. WAIVER OF RIGHT TO JURY TRIAL. To the extent that the foregoing Alternative Dispute Resolution provisions are inapplicable to any dispute or action to be taken by Bio Remedies and/or the Client, Bio Remedies and the Client each hereby irrevocably waives its rights to trial by jury in any action or proceeding arising out of these Terms or the transactions relating to their subject matter.
21. GOVERNING LAW; VENUE. These Terms shall be governed by and construed and enforced in accordance with the laws of the State of Arizona without regard to the conflict of laws provisions of any jurisdiction. Venue shall be established in Pima County, Arizona for any dispute, claim, arbitral proceeding, or legal action relating to these Terms.
22. FORCE MAJEURE EVENTS. The term “Force Majeure Events” shall mean any delay or hindrance in or prevention from the performance of the Services or any other act required of Bio Remedies under these Terms by reason of strikes, labor troubles, inability to procure material due to shortage or substantial rise in cost, failure of power, restrictive governmental laws or regulations, governmental mandates or delays, delays in issuance of permits, delays in connection of utilities by utility providers, disruption of markets, pandemics, epidemics, inclement or adverse weather, riots, insurrection, war or other reasons of a similar nature.
23. NOTICES. Except as may be otherwise required pursuant to applicable law, all notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to Bio Remedies or the Client, as the case may be, at the address set forth in the Estimate or to such other address that may be designated by Bio Remedies in writing. Every Notice shall be delivered by (i) personal delivery, in which case such Notice shall be effective upon the intended recipient’s receipt of the Notice, (ii) nationally recognized overnight courier (with all fees pre-paid), in which case such Notice shall be effective on the earlier of the intended recipient’s actual receipt of the Notice or the first (1st) business day after the Notice was delivered to such courier, (iii) certified or registered mail (in each case, return receipt requested, postage prepaid), in which case such Notice shall be effective on the earlier of the intended recipient’s actual receipt of the Notice or the fifth (5th) day after the Notice was delivered to such courier.
24. SEVERABILITY. If any provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
25. SURVIVAL. The following sections of these Terms will survive and remain in force after any termination or expiration of these Terms: Section 6, Section 7, Section 8, Section 11, Section 13, Section 14, Section 17, Section 20, and Section 21.
26. COUNTERPARTS. These Terms may be executed in counterparts, all such executed counterparts constitute the same agreement, and the signature of any party to any counterpart shall be deemed a signature to, and may be appended to, any other counterpart. Facsimile or electronically mailed pdf signatures may be used in place of original signatures on these Terms. In furtherance of the foregoing, the parties hereto: (i) intend to be bound by the signatures on a facsimile or electronically mailed pdf document, (ii) are aware that the other parties will rely on the facsimile or electronically mailed pdf signatures, and (iii) each hereby waive any defenses to the enforcement of these Terms based on the form of signature.
27. TIME IS OF ESSENCE. Time is hereby expressly made of the essence of these Terms.
28. INTERPRETATION. Where the context so indicates, the masculine shall include the feminine and neuter, and the neuter shall include the masculine and feminine, the singular shall include the plural. Any rule of legal interpretation to the effect that any ambiguity is to be resolved against the drafting party will not apply in interpreting these Terms.
29. NO WAIVER. Neither a failure nor a delay on the part of Bio Remedies in exercising any right, power or privilege under these Terms shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The rights, remedies and benefits of Bio Remedies herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which either may have at law, in equity, by statute or otherwise, except as expressly provided herein.