TERMS AND CONDITIONS
Description.
a. These Master Terms and Conditions to Proposal (“Terms and Conditions”) and the attached Proposal shall constitute a binding agreement (the “Agreement”) between Evolve Technologies, LLC, a Texas limited liability company with its principal place of business at 2327 Beatrice St., Dallas, Texas 75208 ("Seller" or “Evolve Technologies”), and the undersigned party ("Customer" or “Customer Representative”). This Agreement becomes effective upon the Customer's signature and applies to the services and materials specified for the property located at the address provided in the attached Proposal (the “Site”). b. The Customer agrees to purchase from the Seller the products [referred to as “Product(s)", “Material," "Equipment," or "Item(s)"] and related accessories specified in the attached Proposal. These products are described in detail within the Proposal and shall be provided in accordance with the terms and conditions set forth in the Agreement.
2. Delivery, Risk of Loss, Force Majeure, Title.
a. Delivery i. The Seller shall make reasonable efforts to deliver the Materials specified in the attached Proposal to the Customer in accordance with the agreed timeline. However, all delivery dates are estimates and subject to change based on unforeseen circumstances, including but not limited to delays caused by suppliers, transportation, weather, Force Majeure, or other factors beyond the Seller's control. The Seller is not liable for any damages, penalties, or losses incurred by the Customer due to delivery delays. ii. The risk of loss for the Materials shall transfer to the Customer upon delivery to the Site or upon pickup by the Customer or their authorized agent. The Customer is responsible for inspecting the Materials upon delivery or pickup and notifying the Seller in writing within 48 hours of any discrepancies, defects, or damages. Failure to provide timely notice constitutes acceptance of the Materials in their delivered condition. Additional charges may apply for redelivery, storage, or handling if delivery is delayed or refused by the Customer. b. Transfer of Risk Upon. Delivery. i. The risk of loss or damage to the Materials specified in the attached Proposal transfers to the Customer upon delivery to the designated address or pickup by the Customer or their authorized agent. ii. Once the risk of loss has transferred, the Customer assumes full responsibility for any loss, theft, damage, or destruction of the Materials, regardless of the cause. c. Responsibility During Installation i. If the Materials are to be installed by the Seller, the Seller assumes responsibility for the ordinary care of the Materials during the installation process. ii. Upon completion of the installation of each Item/Material, as specified in the proposal, the risk of loss or damage reverts to the Customer. d. Delays Caused by the Customer i. In the event delivery or installation is delayed due to circumstances caused by the Customer, such as lack of access to the Site or incomplete preparations, the risk of loss transfers to the Customer as of the originally scheduled delivery or installation date. ii. The Seller shall not be liable for any damages or losses resulting from delays caused by the Customer. e. Force Majeure i. The Seller shall not be held liable for any delay or failure in the delivery or installation of the Materials specified in this Agreement, whether directly or indirectly, due to circumstances beyond its reasonable control (“Force Majeure”) Such circumstances include, but are not limited to: 1. Federal, state, or municipal action, order, statute, ordinance, or regulation.2. Strikes, labor disputes, lockouts, or other industrial disturbances.3. Riots, civil unrest, or other public disturbances. 4. Inability to secure materials, supplies, or other necessary components. 5. Acts of God, including natural disasters such as fires, floods, earthquakes, or severe weather. 6. Any other unforeseen events, contingencies, or circumstances, whether occurring within or outside the United States, that prevent or hinder the manufacture, delivery, or installation of the Materials. 7. Terrorism. 8. Epidemic or pandemic.9. These provisions shall apply notwithstanding any terms in this Agreement that establish time as of the essence. The Seller will make reasonable efforts to mitigate the impact of any Force Majeure event but shall not be obligated to fulfill the terms of this Agreement under such circumstances until the Force Majeure event has been resolved. f. Title i. Title to the Materials specified in the attached Proposal shall pass to the Customer immediately upon: 1. Full payment of the purchase price. 2. Payment of all associated costs and charges required under this Agreement. 3. Until payment in full is received, the Seller retains ownership of the Materials. 4. The Customer assumes full responsibility for the Materials, including risk of loss or damage once title has passed.
3. Installation.
a. Scope of Installation i. The Seller agrees to install the Materials specified in the attached in a workmanlike manner at the Site, except where noted otherwise in the Proposal. b. Start Date and Timeline i. Installation shall commence on or about the mutually agreed start date and will proceed as outlined in the Proposal. ii. All dates provided are estimates, and the Customer acknowledges that unforeseen technical or logistical issues may arise during the installation process. iii. The Seller shall not be held liable for delays caused by such unforeseen difficulties. c. Site Access i. The Customer agrees to provide the Seller with full and unrestricted access to the Site during the times requested by the Seller to complete the installation. d. Method of Installation i. The Seller shall perform the installation using its usual and customary methods. ii. The Seller shall follow the specifications provided by the Customer for the Site where the Materials are to be installed. e. Plans, Drawings, Specifications, Site Information i. The Customer is responsible for supplying the Seller with accurate diagrams, plans, specifications, drawings and any other relevant information regarding the Site where the Materials are to be installed. ii. Failure to provide such information in a timely manner may result in additional charges or delays, for which the Seller shall not be held liable.
4. Customer's Responsibilities.
a. The Customer shall perform the following to facilitate the Seller's work: i. Access to and Storage at the Installation Site ii. The Customer agrees to provide the Seller with complete use of and unrestricted access to the Site at all times scheduled for the work. iii. The Customer further agrees to: 1. Remove all obstacles, waste, or debris from the Site that may impede the Seller’s ability to install the Materials. 2. Accept delivery of the Materials and provide secure storage access at the Site for the Materials. 3. Provide all necessary lighting and electricity required for the Seller to perform the installation. 4. Ensure the Site and environs is a safe working environment for the Seller’s personnel. i. Disposal of Scrap 1. The Customer shall provide the Seller with appropriate receptacles to dispose of scrap materials and remnants resulting from the installation process.
5.Waiver of Default.
a. No modification, addition to, or waiver of any right, obligation, or default shall be effective unless: i. It is in writing. ii. It is signed by the party against whom enforcement is sought. b. A waiver of any right, obligation, or default on one or more occasions shall not: i. Be construed as a waiver of any subsequent or other right, obligation, or default. ii. Limit the ability of either party to enforce other terms of this Agreement at a later date.
6. Warranties.
a. Workmanship Warranty. i. Evolve Technologies warrants its installation workmanship for a period of one (1) year from the later of: 1. The date of delivery of the Materials to the site. 2. The date of Evolve Technologies' installation of the Materials at the site. i. During this period, Evolve Technologies will provide labor to repair defects in workmanship related to the installation; see section 6.e.i. a. Software Warranty i. Evolve Technologies provides a 90-day warranty on software functionality for Materials supplied by the Seller. ii. However, Evolve Technologies does not control or have access to the software of third-party equipment and cannot guarantee the continued functionality of such devices if: 1. The software fails. 2. The software is updated or altered by the manufacturer or other parties. a. Manufacturer’s Warranty i. Evolve Technologies warrants that the Materials provided shall be free from defects in material and workmanship as covered by the manufacturer's warranty. ii. The Seller will support the manufacturer's warranty and hereby assigns to the Customer all rights and interests in the manufacturer’s warranty for the Materials. iii. Labor for Manufacturer Defects 1. If labor is required to address a defective product that is outside of the 90 day warranty, for which the manufacturer has admitted or agreed to fault and will replace. The labor will be subject to an installation charge at the Seller’s stated hourly rate. [WHAT 90-DAY WARRANTY IS THIS ABOUT?] d. Warranty Limitations i. The Seller does not warrant products or equipment beyond the Materials specified in this Agreement. ii. The Seller does not warrant the Materials against normal wear and tear. iii. The Customer acknowledges that use of the Materials must conform to the specifications and instructions provided, including manufacturer’s manuals. iv. Any negligent handling, misuse, or failure to follow provided specifications and instructions voids all warranties. e. Disclaimer i. There are no warranties, express or implied, which extend beyond the description provided in this Agreement. ii. In no event shall any warranty, express or implied, from Evolve Technologies exceed the one (1) year workmanship warranty.
7. Service Fees and Charges.
a. Support Scope i. The Seller only provides support for the Materials it has sold to the Customer, as outlined and agreed upon in the signed Proposal. b. Time and Materials i. Except for warranty work or unless otherwise agreed in writing, all services provided by the Seller to the Customer will be charged on a "Time and Materials" basis as follows: ii. Hourly Labor 1. The time of the Seller's personnel will be charged at their then-current hourly rates in increments of 1/4 hour (15 minutes). On-site service will be billed door-to-door, including travel time. a. Parts: Parts will be charged at the Manufacturer's Suggested Retail Price (MSRP). b. Out-of-Pocket Expenses: The Customer will be charged for any out-of-pocket expenses incurred by the Seller, including: a. Lodging (if overnight). b. Airfare at cost plus a 15% overhead fee. c. Meals (if overnight) reimbursed at the General Services Administration (GSA) per diem rates for the service location. d. Vehicle rental rate, if applicable, plus 15% and/or mileage at the per-mile rate provided by the IRS at the time of signature.
8. Limitation of Remedies.
a. The Seller's sole liability under the warranties contained in section 6.d. is limited to the following: i. Repair or replacement of defective parts. ii. Necessary adjustments to maintain the Materials in proper working order. iii. Other repairs required to ensure the proper functioning of the Materials. b. The Seller shall not be held liable for any delays caused by circumstances beyond its reasonable control, including but not limited to: i. Labor disputes or problems. ii. Shortages of supplies or materials. iii. Unforeseen difficulties during the installation of the Materials. iv. Any other conditions or circumstances outside the Seller's control. v. Force Majeure.
9. Permits and Licenses.
a. The Customer is responsible for paying for and securing all permits or licenses required by state or local authorities in connection with the Seller's performance under this Agreement. b. The Customer must ensure that all necessary permits or licenses are obtained in a timely manner to avoid delays in the Seller's work. c.The Seller shall not be held liable for any delays, fines, or additional costs resulting from the Customer’s failure to secure the required permits or licenses. d. These responsibilities apply to all aspects of the Seller’s obligations as outlined in this Agreement.
10. Entire Agreement.
a. Comprehensive Agreement i. This Agreement (the Proposal and these Terms and Conditions) constitutes the entire agreement between the parties concerning the subject matter herein. ii. No prior course of dealings between the parties and no trade practices shall supplement, explain, or modify the terms of this Agreement. iii. This Agreement shall supersede and take precedence over any prior or existing agreements, whether written or oral, between the Seller and the Customer or their respective representatives, to the extent that such agreements conflict with or are inconsistent with the terms of this Agreement. b. Course of Performance i. Acceptance of, or acquiescence in, any performance under this or any prior agreement does not affect the terms of this Agreement, even if the accepting party had knowledge of the performance and did not object. c. Exclusivity of Terms i. No other representations, understandings, or agreements outside of those explicitly stated herein have been relied upon in forming this Agreement. ii. Modifications to this Agreement must be in writing and signed by both parties or their authorized agents. d. Authority of Agents i. No agent, employee, or representative of either party has the authority to bind the parties to any affirmation, representation, or warranty beyond what is stated in this Agreement. ii. Affirmations, representations, or warranties not explicitly included in this Agreement are unenforceable. e. Enforceability i. If any provision of this Agreement is found invalid or unenforceable, it shall be deemed removed, and the remaining provisions shall remain in full force and effect. ii. This Agreement is governed by the laws of the State of Texas. iii. This Agreement represents the entire understanding between the parties and cannot be modified unless in writing and signed by both parties. f. Notice i. All notices under this Agreement must be in writing. ii. Notices are considered fully given and received when sent by certified or registered mail, return receipt requested, with postage prepaid. iii. Notices must be properly addressed to the parties at the addresses listed on page 1 of this Agreement or to such addresses as the parties may later designate for this purpose. [NEED TO PROVIDE SPACE FOR ADDRESS ON 1ST PAGE OR IN THE PROPOSAL NEED TO MAKE CONSISTENT WITH Sec 12.c.] g. Reimbursement of Enforcement Costs i. If the Seller is required to initiate any legal action, arbitration, or other proceedings to enforce its rights under this Agreement, the Customer agrees to reimburse the Seller for all reasonable costs and expenses incurred, including but not limited to: 1. Attorney’s fees. 2. Court costs and related expenses. 3. Filing fees and other necessary disbursements. ii. These costs and expenses are recoverable in addition to any damages, payments, or other remedies to which the Seller is entitled under this Agreement.
11. Indemnification and Limited Covenant Not to Sue.
a. Indemnification by Customer i. The Customer agrees to hold the Seller harmless and indemnify the Seller against any and all debts, obligations, costs, and damages, including attorney’s fees, arising from claims or causes of action asserted by any third party. ii. This indemnity applies to claims resulting from: 1. The subsequent sale of the Materials ("Materials") by the Customer, its agents, or affiliates. 2. Reinstallation, use, repair, or maintenance of the Materials performed by the Customer, its agents, or affiliates. 3. The Customer’s decision to purchase the Materials. b. Exclusion of Seller’s Negligence or Misconduct. i. This indemnity does not apply to the Seller’s own acts of negligence or willful misconduct during the initial installation, repair, or replacement of the Materials. c. Covenant Not to Sue. i. The Customer, including its agents, employees, officers, heirs, executors, administrators, and assigns, agrees not to prosecute or recover upon any claims or causes of action against the Seller related to the sale, installation, reinstallation, use, repair, or maintenance of the Materials, except as specifically provided in section 8 of this Agreement.
12. Dispute Resolution.
a. Jurisdiction and Venue. i. Any disputes arising from the interpretation or enforcement of this Agreement shall be resolved exclusively in the courts of the State of Texas, located in Dallas, TX. b. Section Headings. i. The section headings appearing in this Agreement have been inserted for the purpose of convenience and reference only and shall not limit or affect the meaning or interpretation of this Agreement in any way whatsoever. c. Notices i. Any notices required or permitted hereunder shall be given to the appropriate party at the address or email address specified below (or at such other address as the party shall specify in writing by notice delivered in accordance with this section. Such notice shall be deemed given upon personal delivery to the appropriate address or, if sent by certified or registered mail, three days after the date of mailing. d. Agreement Supremacy and Execution i. The terms of the Proposal, effective as of the date the Proposal is signed, whether by electronic signature or physical signature, are hereby incorporated into the Terms and Conditions of this Agreement and the attached Proposal. ii. In the event of any inconsistency between the Proposal and these Terms and Conditions, the Terms and Conditions of this Agreement and the attached Proposal shall prevail and govern. iii. The Proposal explicitly itemizes: 1. The Materials to be provided. 2. Payment terms. 3. Any other relevant matters necessary for the performance of this Agreement. iv. Both Parties shall receive a copy of this fully executed Agreement prior to the commencement of any work. Delivery of the Agreement may be in physical or electronic form, and a digital copy shall be deemed legally sufficient for all purposes. Additionally, providing the option to download the Agreement through a secure and accessible platform shall also satisfy the requirement for delivery.
13. Execution and Binding Nature of Signatures.
a. This Agreement may be executed using electronic or physical signatures, both of which shall be considered equally valid, binding, and enforceable under law. b. The enforceability of electronic signatures complies with all applicable state and federal laws, including but not limited to the Electronic Signatures in Global and National Commerce Act (E-SIGN Act) and the Uniform Electronic Transactions Act (UETA). c. This revised language ensures clarity, enforceability, and compliance with legal standards for both electronic and physical signatures.
14. Payment Terms.
a. Payment Obligations i. Payment terms are outlined in the accepted proposal or contract. All payments are due in accordance with the schedule specified in the proposal. Payments must be made in full and on time to avoid penalties or additional fees. b. Late Payment Penalty i. If payment is not received within the agreed-upon time frame, a late payment charge will apply. Late payments will accrue interest at a rate of 10% per annum, calculated from the due date until the payment is received in full. ii. This interest rate complies with Chapter 302 of the Texas Finance Code and is not intended to exceed the maximum allowable rate. c.Payment Returns i. Payments returned due to insufficient funds, incorrect payment details, or other issues will be subject to a 15% return fee, calculated based on the returned payment amount. ii. Customers are responsible for providing accurate payment details and ensuring sufficient funds are available to avoid return fees. d. Project Cancellation Policy i. If the customer cancels the project after funds have been received, the following policies will apply: (a) Return of Funds: Any funds already paid will be returned minus a 15% cancellation fee to cover administrative, processing, and related costs. (b) Delivery of Materials: If Materials have been ordered and received for the project, the customer may choose to: 1. Take delivery of the Materials, in which case the value of the Materials and a 15% restocking or handling fee will be deducted from the refunded amount. 2. Decline delivery, in which case the Materials will be retained by Evolve Technologies, and the 15% fee will still apply. a. Any custom or non-returnable Materials will be excluded from refunds and must be paid for in full by the customer. e. Collection Costs i. The customer agrees to reimburse Evolve Technologies for any costs incurred in collecting overdue payments, including but not limited to legal fees, court costs, and collection agency fees, if applicable. f. Suspension of Services i. In the event of nonpayment, returned payments, or project cancellation, Evolve Technologies reserves the right to suspend or terminate any ongoing services, support, or warranties provided under the contract until all outstanding balances, including interest, cancellation fees, and restocking fees, are paid in full. g., No Waiver of Rights i. The enforcement of late payment charge, return fees, and cancellation policies does not waive any other rights or remedies available to Evolve Technologies under this Agreement or applicable law.
15. Customer's Default.
a. If the Customer fails to make any payment due under this Agreement or becomes insolvent, or is a party to or acquiesces in any bankruptcy, receivership proceeding, or similar action affecting the Customer's affairs or property, the Seller may take the following actions: i. Apply a lien: The Seller may apply a lien on the property or Site for the default amount, including applicable interest. ii. Reclaim Materials: The Seller may enter the Site where the Materials are located and remove the same without prejudice to any other remedies available to the Seller. 1. Upon reclaiming the Materials, the Seller may: a. Sell the reclaimed Materials under commercially reasonable terms as determined by the Seller. b. Apply the proceeds of such sale against the Customer's outstanding obligations under this Agreement. 1. These remedies are cumulative and do not limit the Seller from pursuing other rights or remedies available under law or this Agreement.
16. Change of Ownership.
a. The Customer remains fully responsible for all payments due under this Agreement, regardless of any changes in ownership of the property or Site where the Materials were installed. b. If the property or Site is sold before the final payment(s) have been invoiced or paid: i. The Customer is still obligated to pay any outstanding amounts in full. ii. The Seller retains the right to pursue payment from the Customer, as the original party to this Agreement. a. Failure to fulfill payment obligations will be treated as a default under this Agreement, and the Seller may pursue all available remedies, including: i. Applying a lien to the property for the unpaid amount plus applicable interest as stated in Section 14 ii. Legal action to recover the outstanding balance. a. These terms shall remain in effect until all payments under the Agreement are satisfied in full.
17. Assignment.
a. The Customer has no right to assign the Materials or any part of this Agreement to another party without the Seller’s express written consent. b. The Seller’s written consent to such an assignment may be granted or withheld at the Seller’s sole discretion. c. Any attempted assignment by the Customer without prior written consent from the Seller shall be deemed null and void. d. This condition applies to all rights, obligations, and responsibilities outlined in this Agreement.
18. Labor and Material Terms and Conditions.
a. Material Pricing i. General Material Pricing 1. The price of Materials is detailed in the attached proposal and: a. May change if any approved change orders deviate from the original proposal. b. Is only guaranteed or fixed upon receipt of the deposit payment. c. If the proposal is signed but no payment is made, Material costs may be subject to change. d. If the product proposed is determined not to be the best or applicable solution, as determined by industry standards, for the given surface material, pricing is subject to change, and a Change Order (“CO” or “Change Order”) reflecting the additional cost will be issued and must be approved before proceeding. ii. Custom or Special-Order Materials 1. Non-Refundable Policy a. All custom items are non-refundable under any circumstances. 1. Ordering Process a. Custom items will only be ordered upon receipt of payment. b. No orders will be placed without full payment. iii. Cancellation Policy 1. Once custom items are ordered: a. The order cannot be canceled or modified. b. Customers are fully responsible for the commitment to purchase once the order is placed. b. Labor and Installation i. General Labor Pricing 1. The price of labor is detailed in the attached proposal: a. Shall be payable as specified in Section 14 of the proposal. b. May change if any approved change orders deviate from the original proposal. c. If the product specified in the Proposal is determined to be unsuitable for the installation, the pricing outlined therein shall be subject to change. A formal Change Order detailing any additional costs will be issued and must be approved in writing by both Parties prior to proceeding with any further work d. Evolve Technologies will honor the quoted labor rate and/or installation price of a product for 90 days. c. Completion of Labor and Installation. i. Once labor has been performed and the product has been installed: 1. The installation is considered complete and satisfactory unless otherwise specified in writing. d. Removal and Reinstallation. i. If the purchaser or purchasers' representative requests the installation to be completed on a temporary basis or needs to be removed and reinstalled at a later date: 1. Evolve Technologies will schedule and complete the installation as requested- the Customer is responsible for any additional cost incurred. a. For example, if a TV is installed at the customer-approved height, but the customer later requests the TV to be moved to a different height, this adjustment will be subject to an additional labor charge. 1. Similarly, if removal and reinstallation are required due to the incompletion of work by another trade, such as unfinished electrical or structural work, this is not the fault of Evolve Technologies and will also incur additional labor charges. e. Responsibility for Additional Charges i. Any request for removal or reinstallation will: 1. Require approval of additional charges by the customer before work is performed. 2. Be outlined in a new proposal or change order. 3. If time is of the essence and the builder or customer verbally approves the changes and the work is completed, this verbal approval will be considered as full acceptance of the additional costs, which will be invoiced accordingly. f. Accountability i. Evolve Technologies is not liable for delays, disruptions, or additional work caused by the incomplete work of other trades or third parties. ii. If the installation is scheduled and the installation team arrives but is unable to install the Material due to delays or incomplete work by another trade, the client and/or builder will be held responsible. 1. In such cases, the client and/or builder will be billed by hour for the time the installation team is delayed or unable to proceed with the installation. g. Substitutions i. The Seller reserves the right to substitute other Materials or accessories of equal or greater quality and functionality for those specified in the attached Proposal (the "Materials"), provided that no additional costs will be charged to the Customer as a result of such substitutions. Any substitutions made will follow the terms of this Agreement and will not compromise the overall integrity or purpose of the Materials or services provided. The Seller will notify the Customer of any substitutions in advance, where feasible. h. Change Orders i. Any alteration or deviation from the original contractual specifications that result in additional costs will require a written change order. ii. The change order must: 1. Clearly outline the alterations or deviations being requested. 2.Specify the additional costs associated with the changes. 3. Be agreed upon and signed by both parties before any work is performed. iii. Verbal Change Orders: 1. In the event the Customer verbally requests a change order in the interest of maintaining the project schedule or avoiding delays, such a request will be considered verbal acceptance of the additional costs associated with the change order. 2. The Seller will document the verbal request and proceed with the work as directed, with the agreed costs invoiced accordingly.
19. Mechanic’s Lien Rights and Notices.
a. Right to File a Mechanic’s Lien i. In accordance with the Texas Property Code, Chapter 53, the Seller retains the right to file a mechanic's lien on the property described in this Agreement in the event of nonpayment for labor, Materials, or services provided under this contract. Filing a lien may affect the property title or ownership rights. b. Notice Requirements i. If payment is not received as outlined in this Agreement, the Seller will provide a written notice of unpaid funds to the property owner and, if applicable, a notice of intent to file a lien. ii. Subcontractors and suppliers must provide the following statutory notices to preserve lien rights: c. Notice of Unpaid Funds i. Residential Projects: No later than the 15th day of the 2nd month after labor or Materials are provided. ii. Non-Residential Projects: No later than the 15th day of the 3rd month. d. Intent to File a Lien i. At least 30 days before filing a lien affidavit. ii. All notices will be sent via certified mail to the property owner at the address provided in this Agreement. e. Lien Waivers: i. Any lien waivers executed under this contract will comply with the forms prescribed by Section 53.281 of the Texas Property Code. Waivers will only take effect upon receipt of payment in full. f. Retainage (If Applicable): i. The property owner agrees to withhold 10% of the contract price during construction as retainage, as required under Section 53.101 of the Texas Property Code if retainage is applicable.g. Residential Property Notice: i. In compliance with Texas law, the property owner is notified that subcontractors and suppliers may have the right to file a lien against the property if they are not paid for their labor or Materials. h. Deadlines to File a Lien: i. The Seller must file a lien affidavit: 1. For Residential Projects: By the 15th day of the 3rd calendar month after labor or Materials are last provided. 2. For Non-Residential Projects: By the 15th day of the 4th calendar month after labor or Materials are last provided.
