1. These Terms and Conditions are incorporated into any sales contract or written agreement between Allied and Owner (as those terms are defined in that agreement) as a material part of any sale to Owner and set the complete scope of Allied’s duties and liabilities. The parties acknowledge that, except for these liability limitations, the selling price would be higher.

 

  1. It is the responsibility of the Owner to determine specifications for the work to be performed. Allied will construct and install the agreed materials in accordance with the Owner’s specifications.

 

  1. Allied may cancel this agreement upon written notice to Owner. This contract is non-cancelable by Owner except; (a) upon agreed terms reduced to writing; or (b) upon occurrence of an event which by law allows cancellation by a party hereto; or (c) prior to commencement of the work, upon payment of 50% of the contract price; or (d) after commencement of the work, upon payment of (i) 50% of the contract price or (ii) a pro-rata portion of the contract price for materials provided, work performed and costs incurred, whichever is greater. Time is of the essence.

 

  1. Title and risk of loss or damage to the materials shall pass to Owner on delivery at job address.

 

  1. Owner may inspect the materials for completeness or shortages for five calendar days after delivery. Owner must make written objections to the materials specifically stating any alleged non-conformities. Allied shall have a reasonable period of time to correct or replace the materials. If Owner fails to either object or allow Allied to correct any objections, then Owner shall be deemed to have accepted the materials. At any time Owner becomes aware of any alleged problems, defects, errors or concerns, he must notify Allied in writing within five days of discovery, or they are waived.

 

  1. Quoted delivery dates are estimates only. If there is a delay due to any cause, the date of delivery or time for completion shall be adjusted to reflect the delay. Owner will cooperate with Allied in scheduling the work and allowing reasonable access to the property for the work. After commencement or continuation of the work, construction activities shall thereafter be continued in accordance with Allied’s normal construction schedule until the improvements reach substantial completion. Allied will make all reasonable efforts to substantially complete the improvements within a reasonable time.  Allied does not warrant or guarantee completion of the improvements on any specific date.

 

  1. Materials or accessories furnished by Allied are manufactured by others and carry whatever warranty, if any, those manufacturers provide.

 

  1. ALLIED MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, EXCEPT THAT OF GOOD TITLE TO THE MATERIALS. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED.

 

  1. ALLIED IS NOT LIABLE FOR ANY CONSEQUENTIAL OR INDIRECT DAMAGES OR CLAIMS OF LOSS OF USE.

 

  1. Payment in full is due upon substantial completion of the contracted work. “Substantial completion” means ninety percent or more of the contracted materials have been installed and the project and/or dwelling can be used as intended. If payment in full is not made upon substantial completion, Owner acknowledges that there will be no warranties in place for the work performed or the materials provided until Allied receives payment in full. Owner agrees to pay interest on all accrued and unpaid amounts at the lesser of eighteen percent per year or the highest nonusurius interest rate allowed by law.

 

  1. Any change in method of payment after this agreement is signed is considered a change order and is subject to a three percent fee.

 

  1. Owner has no right to retain, back-charge or set off against any amounts payable to Allied.

 

  1. No waiver by Allied of any breach of this agreement shall be a waiver of any succeeding breach.

 

  1. Until full payment has been made, Allied will retain a security interest in, and lien against, the materials regardless of whether they are attached to realty. Owner shall execute any necessary documents to perfect Allied’s security interest and lien in the materials. Allied is also hereby granted a power of attorney coupled with an interest by Owner to perfect such interest in the property on behalf of Owner. The materials provided by Allied are specially fabricated goods and failure to pay may result in a mechanic’s and materialman’s lien being filed against Owner’s property. Owner agrees to pay to Allied any added costs, charges, or fees incurred by Allied associated with filing and perfecting Allied’s security interest and lien rights.

 

  1. Allied’s total liability under this agreement for the materials and services furnished hereunder, from whatever source whatsoever, whether based on contract, warranty, negligence, indemnity, strict liability, statute or otherwise, shall not exceed the price paid by Owner.

 

  1. Owner may not bring any claim against Allied without written notice and reasonable opportunity to cure.

 

 

  1. Allied shall have no liability or responsibility for defects or latent conditions in Owner’s property. If a latent condition or a defect is discovered in Owner’s property, as a courtesy, Allied may use reasonable efforts to advise Owner. Owner is solely responsible for any costs or damages associated with or caused by defects to property.

 

  1. Allied will take extraordinary care when working with or near existing structures, but Allied is not liable for unavoidable damage to older or brittle materials on the Property. Owner waives any claims relating to damage to older or brittle materials on the Property.

 

  1. IMPORTANT NOTICE: YOU AND YOUR CONTRACTOR ARE RESPONSIBLE FOR MEETING THE TERMS AND CONDITIONS OF THIS CONTRACT. IF YOU SIGN THIS CONTRACT AND YOU FAIL TO MEET THE TERMS AND CONDITIONS OF THIS CONTRACT, YOU MAY LOSE YOUR LEGAL OWNERSHIP RIGHTS IN YOUR HOME. KNOW YOUR RIGHTS AND DUTIES UNDER THE LAW.

 

  1. THE CONTRACT IS SUBJECT TO CHAPTER 27 OF THE TEXAS PROPERTY CODE. THE PROVISIONS OF THAT CHAPTER MAY AFFECT YOUR RIGHT TO RECOVER DAMAGES ARISING FROM A CONSTRUCTION DEFECT.  IF YOU HAVE A COMPLAINT CONCERNING A CONSTRUCTION DEFECT AND THAT DEFECT HAS NOT BEEN CORRECTED AS MAY BE REQUIRED BY LAW OR BY CONTRACT, YOU MUST PROVIDE THE NOTICE REQUIRED BY CHAPTER 27 OF THE TEXAS PROPERTY CODE TO THE CONTRACTOR BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, NOT LATER THAN THE SIXTIETH DAY BEFORE THE DATE YOU FILE SUIT TO RECOVER DAMAGES IN A COURT OF LAW OR INITIATE ARBITRATION.  THE NOTICE MUST REFER TO CHAPTER 27 OF THE TEXAS PROPERTY CODE AND MUST DESCRIBE THE CONSTRUCTION DEFECT.  IF REQUESTED BY THE CONTRACTOR, YOU MUST PROVIDE THE CONTRACTOR AN OPPORTUNITY TO INSPECT AND CURE THE DEFECT AS PROVIDED BY SECTION 27.004 OF THE TEXAS PROPERTY CODE.

 

  1. The following text in ALL CAPITALS only applies if (1) the builder is performing disaster remediation services on the Property with construction of the improvements, (2) after the Governor or county judge has issued a disaster declaration for the county in which the Property is located, and (3) Allied has not maintained a physical business address in the subject county or an adjacent county for at least one year prior to the execution of this Contract. THIS CONTRACT IS SUBJECT TO CHAPTER 57 OF THE TEXAS BUSINESS & COMMERCE CODE.  A CONTRACTOR MAY NOT REQUIRE A FULL OR PARTIAL PAYMENT BEFORE THE CONTRACTOR BEGINS WORK AND MAY NOT REQUIRE PARTIAL PAYMENTS IN AN AMOUNT THAT EXCEEDS AN AMOUNT REASONABLY PROPORTIONATE TO THE WORK PERFORMED, INCLUDING ANY MATERIALS DELIVERED.  If applicable, this statutorily prescribed provision may affect the initial cash payment amount described above in this Contract.

 

  1. Contractors who perform renovations, repairs and painting jobs in pre-1978 homes must, before beginning work, provide owners and tenants with the EPA’s lead hazard information pamphlet Renovate Right: Important Lead Hazard Information for Families, Child Care Providers and Schools. Owner acknowledges receipt of all EPA information required to be distributed by law. Owner agrees to cooperate with all procedures required by the EPA to create a lead-safe workspace and renovation.

 

  1. Federal Trade Commission regulations require disclosure of certain information relating to insulation installed or to be installed in residences. Owner acknowledges receipt of all information relating to insulation required to be distributed by law.

 

  1. Because of potential safety and health hazards present during remodeling, as well as the practical limitations on Allied’s ability to control the activities of all persons involved in the construction process and thereby limit the risk of personal injury that may arise from construction activities, the parties agree that, to protect the personal health and safety of Owner and Owner’s licensees and invitees, Owner shall restrict entry by the Owner and Owner’s licensees and invitees onto the Property to a minimum. When Owner choses to enter the Property (except at the request of Allied), and irrespective of Owner’s presence on the Property at such time, OWNER AGREES TO AND DOES HEREBY RELEASE, INDEMNIFY AND HOLD ALLIED HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS OR CAUSES OF ACTION ARISING IN FAVOR OF OWNER OR OWNER’S AGENTS, LICENSEES AND INVITEES ON ACCOUNT OF BODILY INJURY, DEATH OR DAMAGE TO OR LOSS OF PROPERTY IN ANY WAY OCCURRING OR INCIDENT TO THE CONDITION OF THE PROPERTY OR THE IMPROVEMENTS.  THIS RELEASE AND INDEMNITY IS GIVEN TO ALLIED REGARDLESS OF WHETHER ALLIED OR ITS AGENTS OR EMPLOYEES ARE NEGLIGENT IN WHOLE OR IN PART AND EVEN WHEN THE INJURY, DEATH OR DAMAGE TO OWNER OR OWNER’S AGENTS, LICENSEES AND INVITEES IS CAUSED BY THE SOLE NEGLIGENCE OF ALLIED OR ATTRIBUTABLE TO ALLIED’S NEGLIGENCE PER SE OR IMPOSED BY STRICT LIABILITY.

 

  1. Mold is a type of fungus. It occurs naturally in the environment, and it is necessary for the natural decomposition of plant and other organic material. It spreads by means of microscopic spores borne on the wind, and is found everywhere life can be supported. Residential home construction and remodeling is not, and cannot be, designed to exclude mold spores. Allied is not performing mold remediation services for Owner.

 

OWNER RELEASES, ACQUITS AND WAIVES ALL CLAIMS, DEMANDS, LAWSUITS, COSTS, DAMAGES, LIABILITIES, LOSSES AND CAUSES OF ACTION AGAINST ALLIED IN CONNECTION WITH ANY MICROBIAL MATTER OR OTHER FUNGAL GROWTH LOCATED ON THE PROPERTY AND ANY DAMAGES OR INJURIES RELATED THERETO.  OWNER AGREES TO ASSUME ALL RESPONSIBILITY FOR ANY DAMAGES CAUSED BY MICROBIAL MATTER OF FUNGUS OR SIMILAR CONDITION OF GROWTH ON THE PROPERTY, INCLUDING, WITHOUT LIMITATION, PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF INCOME, EMOTIONAL DISTRESS, DEATH, LOSS OF USE, LOSS OF VALUE, ADVERSE HEALTH EFFECTS, OR ANY OTHER EFFECTS.

 

  1. This agreement, and the rights and duties of the parties under it, are governed by the laws of the state of Texas. Exclusive venue for any and all disputes arising from or related to this agreement shall be in Harris County, Texas.

 

  1. This agreement contains all the agreements between the parties. There are no oral agreements and these Terms and Conditions take precedence over any other terms and conditions.

 

DISCLOSURE STATEMENT FOR RESIDENTIAL CONSTRUCTION CONTRACT

Pursuant to Texas Property Code section 53.255

 

KNOW YOUR RIGHTS AND RESPONSIBILITIES UNDER THE LAW.  You are about to enter into a transaction to build a new home or remodel existing residential property.  Texas law requires your contractor to provide you with this brief overview of some of your rights, responsibilities, and risks in this transaction.

CONVEYANCE TO CONTRACTOR NOT REQUIRED. Your contractor may not require you to convey your real property to your contractor as a condition to the agreement for the construction of improvements on your property.

KNOW YOUR CONTRACTOR. Before you enter into your agreement for the construction of improvements to your real property, make sure that you have investigated your contractor.  Obtain and verify references from other people who have used the contractor for the type and size of construction project on your property.

GET IT IN WRITING. Make sure that you have a written agreement with your contractor that includes:  (1) a description of the work the contractor is to perform;  (2) the required or estimated time for completion of the work;  (3) the cost of the work or how the cost will be determined;  and (4) the procedure and method of payment, including provisions for statutory retainage and conditions for final payment.  If your contractor made a promise, warranty, or representation to you concerning the work the contractor is to perform, make sure that promise, warranty, or representation is specified in the written agreement.  An oral promise that is not included in the written agreement may not be enforceable under Texas law.

READ BEFORE YOU SIGN. Do not sign any document before you have read and understood it.  NEVER SIGN A DOCUMENT THAT INCLUDES AN UNTRUE STATEMENT. Take your time in reviewing documents.  If you borrow money from a lender to pay for the improvements, you are entitled to have the loan closing documents furnished to you for review at least one business day before the closing.  Do not waive this requirement unless a bona fide emergency or another good cause exists, and make sure you understand the documents before you sign them.  If you fail to comply with the terms of the documents, you could lose your property.  You are entitled to have your own attorney review any documents.  If you have any question about the meaning of a document, consult an attorney.

GET A LIST OF SUBCONTRACTORS AND SUPPLIERS. Before construction commences, your contractor is required to provide you with a list of the subcontractors and suppliers the contractor intends to use on your project.  Your contractor is required to supply updated information on any subcontractors and suppliers added after the list is provided.  Your contractor is not required to supply this information if you sign a written waiver of your rights to receive this information.

MONITOR THE WORK. Lenders and governmental authorities may inspect the work in progress from time to time for their own purposes.  These inspections are not intended as quality control inspections.  Quality control is a matter for you and your contractor.  To ensure that your home is being constructed in accordance with your wishes and specifications, you should inspect the work yourself or have your own independent inspector review the work in progress.

MONITOR PAYMENTS. If you use a lender, your lender is required to provide you with a periodic statement showing the money disbursed by the lender from the proceeds of your loan.  Each time your contractor requests payment from you or your lender for work performed, your contractor is also required to furnish you with a disbursement statement that lists the name and address of each subcontractor or supplier that the contractor intends to pay from the requested funds. Review these statements and make sure that the money is being properly disbursed.

CLAIMS BY SUBCONTRACTORS AND SUPPLIERS. Under Texas law, if a subcontractor or supplier who furnishes labor or materials for the construction of improvements on your property is not paid, you may become liable and your property may be subject to a lien for the unpaid amount, even if you have not contracted directly with the subcontractor or supplier.  To avoid liability, you should take the following actions:

(1)       If you receive a written notice from a subcontractor or supplier, you should withhold payment from your contractor for the amount of the claim stated in the notice until the dispute between your contractor and the subcontractor or supplier is resolved.  If your lender is disbursing money directly to your contractor, you should immediately provide a copy of the notice to your lender and instruct the lender to withhold payment in the amount of the claim stated in the notice.  If you continue to pay the contractor after receiving the written notice without withholding the amount of the claim, you may be liable and your property may be subject to a lien for the amount you failed to withhold.

(2)       During construction and for 30 days after final completion, termination, or abandonment of the contract by the contractor, you should withhold or cause your lender to withhold 10 percent of the amount of payments made for the work performed by your contractor.  This is sometimes referred to as “statutory retainage.’  If you choose not to withhold the 10 percent for at least 30 days after final completion, termination, or abandonment of the contract by the contractor and if a valid claim is timely made by a claimant and your contractor fails to pay the claim, you may be personally liable and your property may be subject to a lien up to the amount that you failed to withhold.

If a claim is not paid within a certain time period, the claimant is required to file a mechanic’s lien affidavit in the real property records in the county where the property is located.  A mechanic’s lien affidavit is not a lien on your property, but the filing of the affidavit could result in a court imposing a lien on your property if the claimant is successful in litigation to enforce the lien claim.

SOME CLAIMS MAY NOT BE VALID. When you receive a written notice of a claim or when a mechanic’s lien affidavit is filed on your property, you should know your legal rights and responsibilities regarding the claim.  Not all claims are valid.  A notice of a claim by a subcontractor or supplier is required to be sent, and the mechanic’s lien affidavit is required to be filed, within strict time periods.  The notice and the affidavit must contain certain information.  All claimants may not fully comply with the legal requirements to collect on a claim.  If you have paid the contractor in full before receiving a notice of a claim and have fully complied with the law regarding statutory retainage, you may not be liable for that claim.  Accordingly, you should consult your attorney when you receive a written notice of a claim to determine the true extent of your liability or potential liability for that claim.

OBTAIN A LIEN RELEASE AND A BILLS-PAID AFFIDAVIT. When you receive a notice of claim, do not release withheld funds without obtaining a signed and notarized release of lien and claim from the claimant.  You can also reduce the risk of having a claim filed by a subcontractor or supplier by requiring as a condition of each payment made by you or your lender that your contractor furnish you with an affidavit stating that all bills have been paid.  Under Texas law, on final completion of the work and before final payment, the contractor is required to furnish you with an affidavit stating that all bills have been paid.  If the contractor discloses any unpaid bill in the affidavit, you should withhold payment in the amount of the unpaid bill until you receive a waiver of lien or release from that subcontractor or supplier.

OBTAIN TITLE INSURANCE PROTECTION. You may be able to obtain a title insurance policy to insure that the title to your property and the existing improvements on your property are free from liens claimed by subcontractors and suppliers.  If your policy is issued before the improvements are completed and covers the value of the improvements to be completed, you should obtain, on the completion of the improvements and as a condition of your final payment, a ‘completion of improvements’ policy endorsement.  This endorsement will protect your property from liens claimed by subcontractors and suppliers that may arise from the date the original title policy is issued to the date of the endorsement.”

 

IMPORTANT NOTICE: You and your contractor are responsible for meeting the terms and conditions of this contract. If you sign this contract and you fail to meet the terms and conditions of this contract, you may lose your legal ownership rights in your home.

KNOW YOUR RIGHTS AND DUTIES UNDER THE LAW!