SECTION 9 – TERMS AND LEGAL CONDITIONS
Notice: This Contract includes limitations of liability, limitations of remedies, and disclaimers of warranties.
9.1 - PERFORMANCE OF SERVICES AND PRE-EXISTING CONDITIONS: The Client acknowledges that the Provider's performance of services is inherently limited by the pre-existing conditions, construction characteristics, materials, assemblies, contents, and environmental conditions of the Property. The Provider shall exercise reasonable care in the performance of the Work but does not assume responsibility for the effects, manifestations, or remediation of pre-existing conditions, whether known or unknown, that existed prior to commencement of services.
The Client retains responsibility for all costs, impacts, and corrective measures associated with pre-existing conditions, including conditions affecting materials, fabrics, furnishings, finishes, substrates, or structural components. The Provider may, in its discretion, conduct limited pre-testing of materials for issues such as stain removability, colorfastness, shrinkage, fading, or adhesive breakdown; however, it is not always possible to identify such conditions in advance.
The Provider does not represent, warrant, or guarantee that cleaning of walls, ceilings, or other surfaces will restore original color or appearance, nor that all materials or furnishings are suitable for cleaning. The Provider shall use reasonable efforts to advise the Client of adverse effects that may be reasonably foreseeable, but the Client acknowledges that many adverse reactions may occur unpredictably due to hidden construction methods, manufacturing processes, or material composition.
The Client acknowledges that mold and microbial matter are commonly present in indoor environments and that complete eradication is not possible. The Provider does not represent, warrant, or guarantee the removal or eradication of mold or microorganisms.
The Client further acknowledges that the Provider does not represent, warrant, or guarantee the detection, diagnosis, or repair of the original cause of damage beyond the scope of the services expressly authorized under this Contract.
9.2 - WARRANTIES: The Provider expressly disclaims any and all representations, warranties, or guarantees, express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, or any warranty arising from a course of dealing, usage of trade, or custom. This Contract is for the provision of services only and does not constitute a sale of goods.
9.3 - LIMITATION OF LIABILITY: To the fullest extent permitted by law, the Provider, its owners, officers, directors, employees, agents, subcontractors, and affiliates shall not be liable for any indirect, special, incidental, punitive, or consequential damages, penalties, or losses, including claims by third parties, regardless of the legal or equitable theory asserted, whether in contract, tort, negligence, warranty, statute, or otherwise, even if such damages were foreseeable or the Provider was advised of their possibility.
The Provider's maximum aggregate liability under this Contract shall not exceed the total amount actually paid by the Client for the services giving rise to the claim, or the amount of actual proven damages, whichever is less. These limitations shall not apply to damages directly caused by the Provider's proven gross negligence or willful misconduct.
The Client acknowledges that the remedies provided in this Contract are reasonable and proportionate to the nature of the services performed and the fees charged.
9.4 - ADDITIONAL AND REQUESTED WORK: Any labor, materials, services, or work requested by the Client or required due to changing field conditions, concealed damage, safety considerations, or regulatory requirements shall constitute additional work and result in additional charges. Such work may be authorized verbally, in writing, or by the Client's conduct and billed accordingly.
9.5 - NONPERFORMANCE, NOTICE, AND LIMITATION OF ACTIONS: Any claim by the Client for faulty performance, nonperformance, or breach of this Contract shall be made in writing to the Provider within sixty (60) days after completion of the services, but only for matters that the Provider could reasonably have corrected if timely notified. Failure to provide such written notice shall constitute a waiver of the claim.
No action, regardless of form, arising out of or relating to this Contract may be brought more than one (1) year after the Client knew or reasonably should have known of the facts giving rise to the claim.
9.6 - ADMINISTRATIVE WORK AND CONTINUING OBLIGATIONS: The Client acknowledges that, following completion of physical work on the Property, the Provider may be required to provide additional documentation—including but not limited to photos, daily logs, equipment usage records, and timesheets—to support the insurance claim review process. The Client agrees that these post-completion administrative tasks are performed in furtherance of the original scope of work and in response to ongoing insurance carrier requirements. To the extent permitted by law, the parties agree that any follow-up services—whether administrative or physical—performed in connection with this Project shall be considered part of the original contract obligations. The Provider also reserves the right to return to the Property to perform reasonable and necessary follow-up work, and the Client agrees to provide access for this purpose upon request.
9.7 - HEADINGS: The headings contained in this Contract are for convenience of reference only, form no part of this Contract, and have no force or effect whatsoever.
9.8 - FORCE MAJEURE: With respect to the performance obligations of this Contract, where there occurs any prevention, delay, or stoppage due to strikes, lockouts, labor disputes, acts of God, inability to obtain services, labor, or materials, or reasonable substitutes therefor, governmental actions, civil commotions, fire, flood, civil commotion, riot, war (declared and undeclared), revolution, embargoes, public health emergencies, pandemics, government-ordered shutdowns, supply chain disruptions, labor shortages, and other causes beyond the reasonable control of Provider (a Force Majeure event), Provider's failure to perform shall be excused for the duration of such event and for such a time thereafter as is reasonable to enable the parties to resume performance under this Contract.
9.9 - NO WAIVER: A failure of either party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder.
9.10 - SEVERABILITY CLAUSE: If any provision of this Contract is found to be ineffective, unenforceable, or illegal for any reason under present or future laws, such provision shall be fully severable, and this Contract shall be construed and enforced as if such provision never comprised a part of this Contract. The remaining provisions of this Contract shall remain in full force and effect and shall not be affected by the ineffective, unenforceable, or illegal provision or by its severance from this Contract.
9.11 - MODIFICATION AND WAIVERS: No modification, termination, or attempted waiver of this Contract shall be valid unless in writing and signed by the party against whom the same is sought to be enforced.
9.12 - MERGER CLAUSE: This Contract contains the final, complete, and exclusive statement of the Agreement between the Provider and the Client with respect to the transactions contemplated herein. All other prior or contemporaneous oral communications (including, for the avoidance of doubt, any communications in connection with the preparation of this Contract) and all prior written or oral communications and agreements with respect to the subject matter hereof are merged herein and superseded into this Contract. For the avoidance of doubt, it is the parties' intent that no term contained in or omitted from any prior written draft of this Contract or other communication be used as extrinsic evidence under any state law or judicial interpretation to determine the parties' intent hereto.
9.13 - NO REPRESENTATIONS: The Client represents that he/she has had the opportunity to consult with an attorney and has carefully read and understands the scope and effect of the provisions of this Contract. In agreeing to this Contract, the Client has not relied upon any representations or statements made by the Provider or its representatives, which are not explicitly outlined in this Contract.
9.14 - ASSIGNMENT OF RIGHTS: This Contract and the rights and obligations of the parties herein shall inure to the benefit of, and be binding upon their respective successors, assigns, and legal representatives.
9.15 - PREEXISTING CONTAMINATIONS: Notwithstanding any other provision of this Contract, the Provider shall not be responsible for any Toxic Materials that were on the Property previously. The Client agrees that (i) the Provider shall not be responsible for any such Toxic Materials regardless of, boundaries or level of contamination, or the cost of clean-up, is increased as a result of mitigation and Clean-up activities that the Provider may take; and (ii) the Client shall be responsible for any Toxic Material that is discovered, released or disturbed as the result of any excavation or other subsurface activity made or undertaken on the Property by the Provider or its representatives.
9.16 - SUBROGATION AND THIRD-PARTY CLAIMS: Client agrees to defend, indemnify, and hold Provider harmless from and against any claims, demands, damages, liabilities, costs, or expenses (including but not limited to attorneys' fees) asserted by insurers, subrogating parties, or third parties arising out of or relating to alleged failure to preserve evidence, unless such claims are the direct result of Provider's gross negligence or intentional misconduct.
9.17 - SCOPE CLARIFICATION: Provider's role is limited strictly to mitigation and restoration services as defined in this Agreement. Provider is not, and shall not be deemed, a forensic investigator, fire origin analyst, public adjuster, or evidence custodian. Any such services must be contracted separately with appropriately qualified professionals.
It is further presumed by Provider that once its services have been retained, the Client or their authorized agent has already taken appropriate steps to preserve any evidence their insurer requires them to preserve. The nature of the emergency cleanup and mitigation services provided does not allow the Provider sufficient time or resources to identify, collect, or safeguard items that may later be alleged to have evidentiary value. Accordingly, Provider shall not be responsible for the preservation of such evidence unless a separate written agreement has been executed to that effect.
9.18 - ADVERTISING AND MARKETING DISCLAIMER: Provider may engage third-party marketing firms, advertising agencies, or lead generation services to promote its business. The Client acknowledges that any claims, representations, statements, or guarantees made in such advertisements, online content, promotional materials, or marketing communications—whether written, verbal, or digital—are not binding upon Provider and shall not be relied upon by Client. Only the terms, conditions, representations, and warranties expressly set forth in this Contract shall govern the relationship between the parties. To the extent any advertising claim conflicts with this Contract, the terms of this Contract shall control.