Flood Doctor’s performance of the Services is limited by, among other things, the preexisting conditions and characteristics of the Property, material, fabrics, furniture, and/or other items. Flood Doctor expressly disclaims any responsibility or liability for any known or unknown preexisting conditions. Client shall retain responsibility and shall be liable for all effects of and costs necessary to correct such conditions, including, by way of example and not limitation, the conditions identified below:
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- Flood Doctor may, in its sole discretion, pre-test materials for removability of spots or stains; dye or color fastness; shrinkage; fading; adhesive breakdown; or other problems. It is not always possible to determine these conditions in advance.
- Flood Doctor does not represent, warrant, or guarantee that wall and ceiling cleaning will restore the original color to painted surfaces.
- Not all building materials and furnishings are conducive to cleaning. Flood Doctor shall use reasonable efforts to advise the Client of any adverse effects which may be reasonably foreseen due to the nature of the fabrics or materials involved. Flood Doctor does not represent, warrant, or guarantee that such materials can be cleaned or that there will be no adverse effects from any attempt to clean such materials.
- A variety of materials are used in the manufacturing and construction of buildings and furnishings. These materials include backings, linings, tacks, and many other unknown substances that may cause discoloration and other adverse effects to the face material or its structural integrity. The Client acknowledges that it is impossible to determine when such adverse effects may occur, and Flood Doctor does not represent, warrant, or guarantee against such adverse effects.
- The Client acknowledges and agrees that mold is commonly found throughout indoor environments and that it is impossible to fully eradicate mold. Flood Doctor does not represent, warrant, or guarantee the removal or eradication of mold.
- The Client acknowledges and agrees that Flood Doctor does not represent, warrant, or guarantee detection or repair of the original cause of the damage it is hired to mitigate.
Warranties: Flood Doctor specifically disclaims any other representations, warranties, and implied warranties (either in fact or by operation of law), including, but not limited to, any implied warranties of merchantability and fitness for a particular purpose of any implied warranty arising out of a course of dealing, custom or usage of trade. This Agreement provides for the provision of services and does not provide for the sale of goods.
Limitation of Liability: In no event shall Flood Doctor, its owners, any officers, directors, employees, agents, subcontractors, or affiliates be responsible for indirect, special, nominal, incidental, punitive, or consequential losses or damages, or for any penalties, regardless of the legal or equitable theory asserted; including contract, negligence, warranty, strict liability, statute or otherwise, even if it had been aware of the possibility of such damages or they are foreseeable; or for claims by a third party. The maximum aggregate shall not exceed three times the amount paid by the Client for the services or actual proven damages, whichever is less. The Client agrees that the remedies expressed herein represent the sole and exclusive remedies available to the Client under this Agreement. The limitations herein shall apply even if any other remedies fail their essential purpose.
Additional Work: Any labor, materials, or other work beyond those identified in this Agreement shall require a written amendment to this Agreement and will result in additional charges.
Nonperformance and Breach of Contract: Any claim by the Client for faulty performance, nonperformance, or breach under this Agreement for damages, shall be made in writing to Flood Doctor within sixty (60) days after completion of services. Failure to make such a written claim for any matter which Flood Doctor could have corrected shall be deemed a waiver of said claim by the Client. No action, regardless of form, relating to the subject matter of this Agreement may be brought more than one (1) year after the claiming party knew or should have known of the cause of action.
Headings: The headings contained in this Agreement are for convenience of reference only, form no part of this Agreement, and have no force or effect whatsoever.
Force Majeure: With respect to the performance obligations of this Agreement, 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, or embargoes and other causes beyond the reasonable control of Flood Doctor (a Force Majeure event), Flood Doctor’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 Agreement.
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.
Severability Clause: If any provision of this Agreement is found to be ineffective, unenforceable, or illegal for any reason under present or future laws, such provision shall be fully severable, and this Agreement shall be construed and enforced as if such provision never comprised a part of this Agreement. The remaining provisions of this Agreement 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 Agreement.
Modification and Waivers: No modification, termination, or attempted waiver of this Agreement shall be valid unless in writing and signed by the party against whom the same is sought to be enforced.
Overhead and Profit: Flood Doctor shall be entitled to an additive of Ten Percent (10%) overhead, and Fifteen Percent (15%) profit for all services rendered by subcontractors; as well as on all appropriate and approved equipment rental, operating and transporting costs. Overhead and Profit percentages shall be considered to include, among other costs; change order processing costs including without limitation project management, estimating, clerical, and drafting costs performed by field operations or in the home office, relating to change in the Work; field supervision; incidental job burdens; cost of idle equipment; home office overhead and consequential damages; general home office expenses; profit; and loss of profit.
Merger Clause: This work authorization contains the final, complete, and exclusive statement of the Agreement between Flood Doctor and 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 work authorization) and all prior written or oral communications and agreements with respect to the subject matter hereof are merged herein and superseded into this work authorization. For the avoidance of doubt, it is the parties’ intent that no term contained in or omitted from any prior written draft of this work authorization or other communication be used as extrinsic evidence under any state law or judicial interpretation to determine the parties’ intent hereto.
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 work authorization. In agreeing to this work authorization, the Client has not relied upon any representations or statements made by Flood Doctor or its employees, which are not explicitly outlined in this work authorization.
Preexisting Contaminations: Notwithstanding any other provision of this Agreement, Flood Doctor shall not be responsible for any Toxic Materials that were on the Property previously. The Client agrees that (i) Flood Doctor 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 Flood Doctor 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 Flood Doctor or any of Flood Doctor’s Representatives.
Insurance Assignment of Benefits: I hereby authorize my insurance company to pay Flood Doctor directly for their services. As the Owner or Authorized agent of the property owner, it is understood that I have authorized the work and accept responsibility to Flood Doctor for services rendered. It is fully understood and agreed that the Owner/Agent is personally responsible for the total costs and charges for the work, including but not limited to any deductible, depreciation, or holdback not covered by insurance. If the Client’s insurance carrier pays Flood Doctor directly, any charges for services not reimbursed by the insurance carrier are the Client’s sole responsibility and must be paid upon completion of work. Flood Doctor must approve any exceptions in writing, and a finance charge of 1.5% per month (minimum of $1.00), will be applied to any unpaid balance after thirty (30) days.
Invoicing: Flood Doctor shall bill all charges and costs directly to the Client (insured), and, as a courtesy only, a copy of these documents will be e-mailed to the insurance carrier. It is fully understood and agreed that Flood Doctor is hired directly by the Client and is in no way required to communicate, deal, negotiate with, or provide any internal notes, documents, or images to the Client’s Insurance company, or any other Third Party on the Client’s behalf and that all charges and costs are due upon completion of work.
Third Parties: The Client understands and agrees that Flood Doctor is (i) not a public adjusting firm, (ii) does not provide adjusting services, and (iii) will not negotiate with their insurance company on their behalf. If such services are required due to the complex nature of a claim, the Client should retain the services of a licensed and qualified public adjusting firm to negotiate with their insurance carrier on their behalf. At no time will Flood Doctor accept a ‘Third Party Assessment’ of the loss post-mitigation. That includes but is not limited to any insurance company’ Third Party Vendor’, or ‘Third Party Estimate’ for work performed by Flood Doctor or Flood Doctor’s employees, subcontractors, and agents.
Proof of Loss: If proof of loss is required by an insurance carrier or any other third party, the Client is required to keep and maintain their own records. As standard operating procedure and to chart progress, Flood Doctor’s employees and agents take daily photos, notes, and environmental readings and keep track of services and tasks performed. These documents are used to chart drying progress and to help determine if additional equipment or services are required and when Dry-Standard has been reached. Flood Doctor is in no way required or agrees to share, any of its internal documents with the Client, or any other third parties. As a courtesy only, and at its own sole discretion, in order to help clients, navigate the claims process or seek reimbursements; Flood Doctor may choose to provide some relevant documents pertaining to the project. Doing so does not invalidate the terms of this Agreement and shall not be considered a course of conduct. Flood Doctor may share some or none of its internal documents at its own sole discretion.
Attorneys’ Fees: Should the need arise for legal action to collect monies due under this Agreement, or should the matter be turned over to collections, Flood Doctor shall be entitled, in addition to other amounts owed by the Client, to reasonable legal fees and costs of any such collection attempts, and a finance charge of 1.5% per month (minimum of $1.00). This attorney fee provision shall not be effective or enforceable in jurisdictions where attorney fee provisions are made reciprocal or invalid by operation of law. Consent is hereby given for filing of a mechanic’s lien by Flood Doctor for the work described in this Agreement on the Property.
Governing Law: This Agreement and the rights and obligations of the parties under it are governed by and interpreted in accordance with the laws of the Commonwealth of Virginia (without regard to principles of conflicts of law.) The Client consents to the jurisdiction of the Commonwealth of Virginia and the Venue of Fairfax County, Virginia for any litigation regarding this Agreement.
Waiver of Right to Jury Trial: Both Flood Doctor and Client waive their respective rights to a trial by jury with respect to any and all claims or causes of action (including counterclaims) related to or arising out of or in any way connected to this Agreement and agree that any claim or cause of action will be tried by a court trial without jury.