The following Terms and Conditions apply to the various transactions between homeowners, general contractors, and subcontractors, (each a “Customer” and collectively, “Customers”), and Southwest Exterior Inc., a Utah Corporation (hereinafter “Southwest Exterior”). Customer agrees to the following Terms and Conditions by signing an Estimate, signing a pick-ticket, accepting a Southwest Exterior Estimate, or by allowing or requesting Southwest Exterior to commence work on a project. Furthermore, Customer agrees to these Terms and Conditions when a Southwest Exterior Estimate is incorporated by reference into a subcontract. Customer acknowledges that Southwest Exterior reserves the right to change the Terms and Conditions without notice, and Customer agrees to be bound by the most current Terms and Conditions, as posted on Southwest Exterior’s website from time to time.
1. Definitions
1.1. “Agreement”- includes all Estimates, whether signed or unsigned, change orders, invoices, Scope of Work Agreements, Authorization to Work Agreements, Subcontract Agreements, these Terms and Conditions, any attachments, schedules, addenda, or exhibits, and all documents incorporated by reference.
1.2. “Customer”- means any individual, entity, or partnership that purchases or receives services from Southwest Exterior.
1.3. “Default”- includes, but is not limited to, failure to make timely payments, payments in full, breach of an Agreement, failure to abide by these Terms and Conditions, or failure to give adequate assurance as outlined in section 5 below.
1.4. “Estimate”- means Southwest Exterior’s offer to perform certain work at a stated price.
1.5. “Issue”- means a dispute, controversy, or claim arising out of or related to an Agreement.
1.6. “Parties”- includes Customer or Customers and Southwest Exterior.
1.7. “Material”- includes any and all supplies, products, siding, finishings and coatings used by Southwest Exterior in order to complete the project as outlined in the Agreement. Material, as used in this agreement, is considered a generally known term in the Construction industry and Southwest Exterior intends to use such term for this purpose.
2. Acceptance
Southwest Exterior conditions its acceptance of any Customer agreement or subcontract agreement on Customer’s acceptance of these Terms and Conditions, which Terms and Conditions supersede additional or different terms contained in Customer’s agreement, subcontract, other document, or communication(s). Customer’s acceptance or payment for all or any installation service is conclusive evidence of Customer’s assent to these Terms and Conditions.
3. Payment
Customer shall pay all invoices and progress payment/draw requests in full within thirty (30) days from date of invoice or progress payment/draw request. Southwest Exterior requires payments to be made by:
- ACH payment processing, of which Southwest Exterior may provide documentation and instructions in order to allow Customer to make such ACH payments;
- Business check made payable to Southwest Exterior, Inc., mailed to our office located at 7055 W. Gates Ave., West Valley City, UT 84128; or
- Visa or Mastercard with applicable credit card processing fee.
3.1 Returned Check Fee - In the event that payment is made using a business check and such check is returned due to insufficient funds, Customer shall be responsible to Southwest Exterior for all bank fees charged to Southwest Exterior, including interest on such fees.
4. Price Increase
This Price Increase clause provides for a fair allocation of the risk of future market conditions between Southwest Exterior and Customer. Southwest Exterior pricing, as provided in the Estimate is valid for thirty (30) days from the date on the Estimate, unless otherwise evidenced in writing and signed by both Parties. If Customer accepts Southwest Exterior’s Estimate price or includes Southwest Exterior’s Estimate in a bid proposal as a general contractor within thirty (30) days of the Estimate, Southwest Exterior agrees to not increase the Estimate unless Southwest Exterior receives a price increase notice from its suppliers.
4.1. Economic Fluctuation- Southwest Exterior’s Materials may experience economic fluctuation that may impact price, availability, and delivery times.
4.2. Baseline Price and Time- Customer and Southwest Exterior agree the Estimate is the “Baseline Price”. The method for an adjustment in the Baseline Price shall be done through a new Estimate, a change order agreement, or by invoice.
4.3. Adjustment in Baseline Price-
4.3.1. If Southwest Exterior receives notice that Material may experience an increase in price, Southwest Exterior may notify Customer within thirty (30) days from the date Southwest Exterior receives notice of such price increase. If Southwest Exterior notifies Customer of a price increase, then Southwest Exterior will, upon Customer’s written request, provide appropriate documentation substantiating such price increase.
4.3.2. In the event of a price increase in Material, the Baseline Price shall be equitably adjusted to reflect the price increase, subject to section 4.3.3 below, but only for the Material used on or after the date on which Southwest Exterior gives written notice to Customer of the adjustment in price. Southwest Exterior agrees to not include overhead margins or profit margins in the price increase, unless expressly agreed upon in writing, signed by the Parties.
4.3.3. The Baseline Price will not be adjusted by more than ten (10%) percent of the original Baseline Price for the aggregate of the increases in price due to a price increase in Material.
4.3.4. Adjustments to the Baseline Price will not be made on Materials not yet installed/applied/used under the terms of the Estimate prior to the date on which Southwest Exterior gives written notice of the price increase unless the failure to install/apply/use such Material before that date described above is due to delays caused by others or beyond the control of or without the fault of Southwest Exterior or its Material suppliers.
4.3.5. Payment, if any, for a price increase shall be made in accordance with these Terms and Conditions.
4.4. Time-Impact and Availability- If Southwest Exterior is delayed at any time due to a delay in the delivery or unavailability of Material that is beyond the control of and without fault of Southwest Exterior and its Material suppliers, Southwest Exterior shall be entitled to an equitable extension of time. Southwest Exterior is not liable for any expenses, losses, or damages that arise from delay in the installation of Material caused by the fault of others.
4.5. Anti-collusion and Fraud- If Customer requests documentation, in writing, within ten (10) days after receiving notice of a price increase, Southwest Exterior agrees to reasonably provide Customer with a written documentation of the increase, including reasonable details about Southwest Exterior’s relevant cost structures, to show that Southwest Exterior is acting in good faith with regard to the price increase and not acting deceitfully in order to be awarded a project or increase profit margins. Additionally, Southwest Exterior shall not collude with its Material suppliers to receive a price increase.
5. Default
Customer is in Default for invoices not paid in full within thirty (30) days, unless otherwise agreed to by the Parties, as evidenced by a written and signed Agreement. Southwest Exterior charges one- and one-half percent (1 ½ % per month) or eighteen percent annually (18% APR) for all past due amounts. In the event of Default, Customer agrees to pay all service charges assessed against Customer, plus all actual attorney fees and collection costs Southwest Exterior incurs to enforce these Terms and Conditions or to collect money from Customer. Customer agrees that time is of the essence.
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6. Adequate Assurance
If Customer’s financial condition or if Customer’s performance on the Agreement becomes unsatisfactory to Southwest Exterior at any time, Southwest Exterior may suspend and withhold further manufacture, installations, deliveries, Material, or performance. Customer may lift and overcome any suspension by posting with Southwest Exterior within thirty (30) days a security measure or assurance in an amount and/or kind satisfactory to Southwest Exterior. Customer shall continue to be obligated to pay for any Material previously delivered or ordered and work performed up to the date of suspension.
7. Dispute Negotiation and Arbitration
7.1. Negotiation
7.1.1. Customer agrees to engage with Southwest Exterior in good faith to promptly negotiate and resolve any Issue arising out of, or relating to, these Terms and Conditions or pertaining to any Agreement between Customer and Southwest Exterior (the “Negotiation”). The Negotiation must be between the Parties’ executives who have authority to negotiate and settle an Issue between the Parties. Customer shall give Southwest Exterior written notice of any Issue not resolved in the normal course of business. After delivery of the notice, Southwest Exterior agrees to submit a written response to the Customer within a reasonable time. With reasonable particularity, the notice and response must include (a) a statement of each Party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that Party and of any other person who will accompany the executive. Within thirty (30) days after delivery of the notice, the executives of both Parties shall meet at a mutually acceptable time and place, in an effort to resolve such Issue.
7.1.2. The Negotiation ends at the close of the first meeting of executives described above (“First Meeting”). The close of the First Meeting does not preclude continuing or later Negotiations, if desired. If either Party requests continuing Negotiations, then the Parties must follow the notice and meeting requirements above. The Parties may not request continuing Negotiations more than once.
7.1.3. All offers, promises, conduct and statements, whether oral or written, made in the course of the Negotiation by any of the Parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the Parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the Negotiation.
7.1.4. Prior to the First Meeting, Customer may not initiate mediation, arbitration or other litigation for any issue related to these Terms and Conditions.
7.2. Mediation
7.2.1. Any Issue arising out of an Agreement or these Terms and Conditions, shall be subject to Arbitration. Prior to Arbitration, the Parties shall endeavor to resolve Issues by mediation. Issues not resolved by mediations shall be decided by arbitration or other litigation, as outlined in Section 7.3 below.
7.3. Arbitration
7.3.1. If Customer and Southwest Exterior are unable to resolve an Issue by Negotiation or mediation, then the Parties agree as follows:
7.3.1.1. For an Issue involving an amount less than Seventy-Five Thousand Dollars ($75,000), then either Party may initiate litigation in state court.
7.3.1.2. For an Issue involving an amount of Seventy-Five Thousand Dollars ($75,000) or more, then either Party may move to initiate arbitration. The American Arbitration Association (“AAA”) shall administer the arbitration pursuant to the AAA’s Construction Industry Arbitration Rules, unless otherwise agreed to in writing and signed by both Parties.
7.3.2. Arbitrator- A single arbitrator shall hear the arbitration. The arbitrator has the power to determine any claim arising out of, or relating to, these Terms and Conditions or any Agreement between the Parties, including breach, termination, enforcement, interpretation, or validity. The arbitrator has power to determine the scope and applicability of these arbitration clauses. The arbitration will take place in Salt Lake City, Utah.
7.3.3. Discovery and Document Submission- The arbitrator must determine the number and length of depositions based upon the complexity of the claim. The arbitrator may allow document discovery. The Parties may not raise objections, except objections based on privilege, proprietary, or confidential information. The Parties may submit one brief of thirty (30) double-spaced pages in twelve- (12-) point font with one-inch margins and ten- (10-) point font for footnotes. The brief must include a statement of each Party’s position and a summary of arguments supporting that position. Also, the Parties may submit Materially relevant documents.
7.3.4. Hearing- Time is of the essence in dispute resolution. The arbitrator shall hold the hearing within ninety (90) days of filing for arbitration and awards issued within one hundred twenty (120) days. The arbitrator must agree to these limits prior to accepting appointment.
7.3.5. Arbitrator’s Award- The arbitrator shall award to the prevailing Party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration.
7.3.5.1. If the arbitrator determines a Party to be the prevailing Party under circumstances where the prevailing Party won on some, but not all, of the claims and counterclaims, the arbitrator may award the prevailing Party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration. The arbitrator shall give a ten- (10-) page written explanation setting forth the reasons for the disposition of every claim and counterclaim. The arbitrator may not include punitive, consequential, or incidental damages in the award.
7.3.5.2. Anti-Solomon Provision- The arbitrator may not split the award equally among the Parties unless the fault is clearly split between the Parties.
7.3.6. Appellate Review- Within thirty (30) days of receipt of any arbitration award, which shall not be binding if an appeal is taken, any Party may notify the AAA of an intention to appeal to a second arbitrator, constituted in the same manner as the initial arbitration. For the appellate arbitration, each Party may submit one brief of thirty (30) double-spaced pages in twelve- (12-) point font with one-inch margins and ten- (10-) point font for footnotes. The appellate arbitrator may adopt the initial award, modify the initial award, or substitute its own award for the initial award. If the appellate arbitrator modifies or substitutes the initial award, then the appellate arbitrator shall give a ten- (10-) page written explanation setting forth the reasons for the disposition of every claim. The appellate arbitrator has no authority to modify, or replace any part of the award that does not relate to the manifest disregard of the law claim. The appellate arbitrator’s award is final and binding, and judgment may be entered by a court having jurisdiction.
7.4. Lien Rights- This Section 7, Dispute Negotiation and Arbitration clause, shall not preclude any Party from filing a statutory construction lien or from commencing suit to foreclose a lien, but the foreclosure suit shall be stayed until the rendering of the arbitration award, if arbitration has commenced, which award shall be binding in the foreclosure suit as to all matters determined in arbitration, and the lien may then be foreclosed to the extent permitted by law.
7.5. Severability Clause- If a court, mediator, or arbitrator holds a provision of this Dispute Negotiation and Arbitration clause to be unenforceable, all other provisions remain in full force.
7.6. Confidentiality- The Parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
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8. Warranties
Southwest Exterior does not warrant or guarantee Material beyond the respective manufacturer’s warranty or guarantee. Southwest Exterior warrants that the Material supplied under an invoice or Estimate conforms to the description on the invoice or Estimate. The foregoing warranty is Customer’s sole warranty with respect to the Material provided. Except to the extent of the invoice or Estimate descriptions, Southwest Exterior disclaims all other warranties, whether express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. In no event will Southwest Exterior be liable for incidental or consequential damages, whether based on breach of an express or implied warranty, breach of contract, negligence, strict liability, or any other legal theory.
8.1 Use of Subsequent Trades- Customer acknowledges that subsequent trades may cause damage to Southwest Exterior’s Materials, both delivered and installed, and therefore, Southwest Exterior is not liable for damage caused to Southwest Exterior’s Materials, whether delivered or installed, by other trades. Southwest Exterior warrants installation services for a period of one (1) year.
9. Estimates
Southwest Exterior’s Estimates are valid for thirty (30) days from the date on the Estimate, unless otherwise agreed upon, and signed by the Parties. Southwest Exterior conditions its acceptance for orders upon credit approval. Southwest Exterior’s Estimates are not offers, but are estimates and are subject to stock on hand and prior sale. Southwest Exterior estimators arrive at the quantity of Material on the estimate using their best ability. However, Southwest Exterior cannot guarantee that the estimated quantities will satisfy Customer’s requirements. Southwest Exterior does not assume liability for clerical errors. Southwest Exterior’s submission of an Estimate does not constitute acceptance of Customer’s subcontract agreement/terms. Furthermore, Southwest Exterior’s Estimates are subject to these Terms and Conditions or mutually agreeable terms with Customer. By instructing Southwest Exterior to commence work or preparation for work, Customer accepts Southwest Exterior’s Estimate and these Terms and Conditions. In the event of any conflict between the scope of the Estimate and any other document, the Estimate scope shall govern.
9.1 Change Orders- All change orders must be approved in writing through Southwest Exterior’s corporate office. Any change order discussed/approved through Southwest Exterior’s field laborers will be deemed null and void, and Southwest Exterior is not responsible for any work not approved in accordance with these Terms and Conditions. Customer agrees to contact Southwest Exterior’s corporate office to request and receive written approval for all change order work.
10. Scheduling
Customer may not adjust the project schedule more than once per week. Customer must notify Southwest Exterior of changes in the project schedule at least seven (7) days in advance. Southwest Exterior is not bound by modifications to the project schedule that occur as of the result of forces outside of Southwest Exterior’s control. Southwest Exterior may make reasonable adjustments to crews and deliveries to meet project schedules.
11. Proper Install Conditions
Typically, Southwest Exterior inspects conditions before installing Material. Customer shall provide or make available adequate Install Conditions. Southwest Exterior is not liable for any damages for poor Install Conditions or for improper installation when Customer neglects to provide adequate Install Conditions.
12. Water Testing
Southwest Exterior is not liable for the cost of water testing. Furthermore, Southwest Exterior is not liable for damages, either consequential or incidental, to water testing. Customer acknowledges that water testing does not demonstratively show that Southwest Exterior made an improper install.
13. Integration
Estimates, invoices, Scope of Work Agreements, Subcontract Agreements, these Terms, and Conditions, any attachments, schedules, addenda, or exhibits, and all documents incorporated by reference are one Agreement and form the entire agreement between Southwest Exterior and Customer. The entire agreement supersedes any prior representations, whether oral or written and all other communications between Southwest Exterior and Customer.
14. Additional Charges/Fees
Southwest Exterior reserves the right to apply additional charges to the Baseline Price for the following events or changes in the project: 1) mobilization fee, including labor and equipment; 2) Bid bond fees; 3) Change order fees; Should such additional charges be required, Customer may contact Southwest Exterior to discuss the details of such additional charges.
15. Security Interest
Customer grants, and Southwest Exterior retains, a purchase money security interest in all Material not paid for in full, including all delivered and installed goods on behalf of Customer. Customer authorizes Southwest Exterior to execute and file financing statements that describe the Material and other documents that evidence Southwest Exterior’s security interest.
16. Modification
These Terms and Conditions may not be added to, modified, superseded, or otherwise altered, except by a written instrument signed by an authorized representative of Southwest Exterior that explicitly states, “This Agreement modifies Southwest Exterior’s Terms and Conditions.”
17. Indemnification
Customer agrees to save and hold Southwest Exterior harmless from any claims, demands, liabilities, costs, expenses, or judgments arising in whole or in part, directly or indirectly, out of the negligence or lack of care by Customer or Customer’s customers, agents, employees, or invitees involving the use of the Material supplied by Southwest Exterior. This indemnification shall include all costs, attorney fees, and other expenses paid or incurred by or imposed upon Southwest Exterior in connection with the defense of any indemnity claim.
18. Governing Law
Utah law governs these Terms and Conditions regardless of conflict of law rules, except where specifically stated otherwise.
19. Severability
If a court, mediator, or arbitrator holds a provision of these Terms and Conditions to be unenforceable, all other provisions remain in full force.
20. Changes to Terms and Conditions
These Terms and Conditions may change at any time and Customer is responsible to abide by any changes that are made. Customer may obtain a copy of the latest Terms and Conditions by visiting Southwest Exterior’s website at www.southwestexterirorut.com.
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