1. Ghaster Painting and Coatings, Inc. (the Contractor) shall hereinafter be referred to as “GPC”. The term "Owner" shall refer to the Owner (or Agent) that appears on the Proposal and Agreement.
2. Owner acknowledges that the total price specified in the Proposal and Agreement is based on the current cost of both labor and materials. If this Proposal and Agreement is not accepted by the Owner within 30 calendar days from date of issue, GPC reserves the right to revise pricing or withdraw its Proposal without penalty.
3. The Proposal and Agreement is not effective until signed by both GPC and the Owner. No work shall begin until GPC has received a signed proposal memorializing the Owner’s agreement to the scope of work, color selection, price, payment terms, the contract agreement and terms and conditions. If stated in the Proposal and Agreement that a down payment is required, this shall be paid prior to commencement of work.
4. Once fully executed, the Proposal and Agreement and these Terms and Conditions shall constitute the contract (the “Contract”) between GPC and Owner. The Contract represents the entire integrated agreement between the parties and supersedes prior negotiations, representations or agreements, whether written or oral. GPC has not made and Owner has not relied upon any oral agreement, statements and/or representations that are not expressed in writing.
5. Changes in the work specified in the Contract (the “Work”) may be accomplished only by execution of a written Change Order. A Change Order is a written instrument prepared by GPC and signed by Owner stating their agreement upon: (a) the change in the Work; (b) the amount of adjustment in the Contract Price; (c) the extent of the adjustment in the Contract Time. Payment for all Change Order work is due with the final payment to GPC. Notwithstanding the foregoing or any other provision to the contrary, GPC shall be entitled to an equitable adjustment to the Contract Time and the Contract Price, should Owner fail to provide a Change Order where acts, verbal directions or omissions of Owner or its agents modify the character or methods of the Work and thereby increase GPC’s costs and/or time of performance.
6. Owner is solely responsive for making all color selections for the property. GPC shall not be held responsible in any way for the color selection or Owner’s decision to change the color selections once the paint has been ordered and/or applied. The Owner remains responsible for all costs if Owner decides to change the color selections once the paint has been ordered and/or applied.
7. GPC’s bids are as accurate as possible but on occasion, upon pressure washing, various conditions of the substrate that render the Work more expensive can become apparent that were not detectable before. If GPC encounters such substrate conditions or any other conditions at the job site that are (1) conditions which are materially different from the conditions identified in, or contemplated by, the Contract or (2) unusual or unknown conditions that are materially different than conditions typically encountered in the Work provided for in the Contract (collectively “Concealed Conditions”), GPC shall immediately cease working and notify Owner of said condition. GPC shall not be required to perform any further Work unless and until the parties reach a mutual written agreement with respect to the Concealed Condition and any changes in the Contract Price or Contract Time resulting therefrom. Owner hereby releases, indemnifies and holds GPC harmless from and against any and all liability, claims, demands or damages arising out of or related to any Concealed Conditions.
8. If roof access is required to perform the Work, roof tile or roof material can crack or break. Prior to any roof access Owner has the option of either: (1) paying an independent roofing contractor to remove a path of tiles to prevent breakage or (2) allowing the painting crew place foam boards to try to protect the roof. Owner acknowledges and agrees that if they chose option 2, Owner assumes the risk that roof tiles and/or materials may be damaged and GPC will not be held responsible for any damage, cracking or breakage that may occur.
9. If a boom or lift is needed to access paintable surfaces, the Owner recognizes and agrees that there could be damage done to concrete surfaces, walkways/sidewalks, curbs or landscaping in order to access these surfaces and that GPC will not be liable for such damage.
10. Surfactant leaching is a phenomenon wherein the water soluble ingredients in paint become concentrated at the surface creating a brownish film on the paint. This film can dissipate within a couple of weeks. However, Owner acknowledges and agrees that surfactant leaching is a paint manufacturing issue and not a paint application issue. Owner acknowledges and agrees that if surfactant leaching occurs, the manufacturer of the paint is the responsible party, not GPC. Owner hereby waives and forever releases any and all claims against GPC related in any way to surfactant leaching.
11. Should the work be interrupted or its completion delayed by Owner for ten or more consecutive calendar days, the cost for all labor and materials furnished shall be due and payable immediately to the Contractor. Furthermore, if GPC is delayed at any time in the progress of the Work by an act or the neglect of Owner, Owner’s agents or employees, then (1) the contract time shall be reasonably extended and (2) Owner shall be liable for any delay-related costs, damages or losses whatsoever incurred by GPC. If any such delays cause a delay in the commencement or progress of the Work in excess of thirty (30) days, GPC will have the right to terminate this Agreement and recover from Owner any and all funds due and owing up to the date of termination and any delay-related costs, damages or losses whatsoever incurred by GPC.
12. GPC will provide an opportunity to have a final walk through with the Owner at the completion of the project. If the Owner is not available or elects not to have the final walk through, the Owner agrees that the work will be considered complete to the Owner’s 100% satisfaction.
13. Payment is due at time of completion of a projection without exception. GPC shall be entitled to receive from Owner a finance charge of 1.75% per month (21% per annum) on any past due unpaid balances. This charge shall be calculated and commences on the day immediately following the due date and for each succeeding day thereafter until the entire balance due has been paid in full.
14. GPC shall not be held liable for any loss, damages or non-completion of work due to fire, strikes, secondary boycotts, acts of war, inability to obtain materials, malicious mischief, vandalism or Owner's negligence. Furthermore, Owner waives claims against GPC for any and all consequential damages arising out of or relating to this Contract, including but not limited to, damages incurred by Owner for loss of use, rental expenses related to the Project, loss of profit or revenue, financing, business and reputation, and for loss of management or employee productivity or of the service of such persons.
15. Owner agrees that the liability of GPC, its agents, and/or employees, in connection with the Work, resulting from any breach of this Agreement, negligent acts, and/or willful misconduct by GPC, its agents, and/or employees is limited to the total payments actually paid by Owner to GPC under this Contract.
16. To the fullest extent permitted by law, and without limitation, Owner shall defend, indemnify and hold harmless GPC, its officers, directors, managers, members, agents and employees, from and against all claims, damages, losses, lawsuits, arbitration proceedings, demands and expenses, including but not limited to attorneys’ fees and costs, related to or arising in any way from (1) the breach of this Agreement by Owner and/or (2) services performed under the Agreement, provided that any such claims, damages, losses, lawsuits, arbitration proceedings, demands and expenses are caused or alleged to be caused, in whole or in part, by any act or omission of Owner, anyone directly or indirectly employed by Owner, or anyone for whose acts any of them may be liable. Upon any demand by GPC, Owner shall immediately defend GPC. GPC shall have the right to choose any counsel retained to defend all claims, damages, losses, lawsuits, arbitration proceedings, demands and expenses. Owner agrees that GPC shall have the right to control and participate in the defense of any such claims, damages, losses, lawsuits, arbitration proceedings, demands and expenses and that such will not be settled without GPC’s consent, such consent will not be unreasonably withheld. If, in the GPC’s judgment, a conflict exists in the interests of Owner and GPC in such claims, damages, losses, lawsuits, arbitration proceedings, demands and expenses, GPC may retain its own separate counsel whose fees shall be paid by Owner.
17. This agreement shall be governed by and construed and enforced in accordance with the laws of the State of Arizona without regard to any conflict of laws with other States.
18. Any and all disputes between Owner and GPC arising out of or relating to this Agreement shall be resolved by private, confidential, and binding arbitration in Maricopa County, Arizona in accordance with the Arizona Uniform Arbitration Act, A.R.S. §§ 12-1501 to 12-1518 and the then existing Construction Industry Arbitration Rules of the American Arbitration Association, unless the parties mutually agree otherwise. The arbitration shall be conducted by a single arbitrator located in Maricopa County, Arizona. If the parties cannot agree on an arbitrator, the parties shall each name prospective arbitrator, and those individuals shall agree on a third person to act as the arbitrator. The award rendered by the arbitrator shall be final and judgment may be entered thereon in accordance with applicable law in any court of competent jurisdiction. All arbitrations relating to or arising from this Agreement must be commenced within the time provided by statute for the commencement of an action. The parties shall share equally in paying the fees and expenses of the arbitrator during the proceeding. The final award of the arbitrator shall, however, award the prevailing party the fees and expenses incurred with the arbitrator.
19. Neither the failure, nor any delay on the part of GPC, to exercise any right, remedy, power of privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege shall preclude any other or further exercise of the same or any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence.
20. This Agreement constitutes the sole and entire agreement of the parties and supersedes any and all prior and/or contemporaneous agreements, promises, representations, negotiations, statements and/or understandings of Owner and GPC. This Agreement is intended to express the mutual intent of GPC and Owner.
21. No modification or amendment to this Agreement shall be effective unless in writing and executed by the party against whom enforcement of the waiver is sought.
22. In any dispute, arbitration, legal suit, action, or proceeding arising out of or related to this Contract, the prevailing party shall be entitled to an award of all costs and expenses, including without limitation, all reasonable attorneys’ fees and arbitrator fees incurred.
23. A WRITTEN COMPLAINT MAY BE FILED AGAINST CONTRACTOR WITH THE ARIZONA REGISTRAR OF CONTRACTORS WITHIN THE TIME PERIODS PRESCRIBED BY ARIZONA REVISED STATUTES SECTION 32-1155(A) FOR AN ALLEGED VIOLATION OF ARIZONA REVISED STATUTES SECTION 32-1154, SUBSECTION A. WRITTEN MATERIAL REGARDING THE PROCEDURES OF THE REGISTRAR OF CONTRACTORS FOR RESOLUTION OF DISPUTES WITH LICENSED CONTRACTORS OR A COPY OF THE STATE LAW CONTAINED IN ARIZONA REVISED STATUTES SECTION 32-1154, MAY BE OBTAINED BY CONTRACTING THE ARIZONA REGISTRAR OF CONTRACTORS AT 1700 W. WASHINGTON STREET, SUITE 105, PHOENIX, ARIZONA, 85007-2812. THE REGISTRAR OF CONTRACTORS MAY ALSO BE CONTACTED BY PHONE AT (602) 542-1525, OR ON THE WEB AT www.azroc.gov
24. Owner acknowledges by their approval of the Proposal and Agreement that he/she has read, understands and agrees with all of the terms and conditions listed above.
25. This Proposal and Agreement is not binding on GPC unless and until it is signed by an officer of GPC.