Terms of Service
These terms and conditions (together with the attached Customer Setup Form, and any written proposal or price quote signed by the parties hereto in connection with the Work (as defined herein), the “Agreement”) shall govern any and all roof and rooftop-related repairs, maintenance and other services (the “Work”) previously performed by, or to be performed by, EAGLE TRADING INTERNATIONAL CORP. (d/b/a RoofingSource), an Illinois corporation (including its officers, directors, employees, agents or affiliates, the “Company”, “us” or “we”), on behalf of the undersigned (together with its employees, officers, directors, agents and contractors, “you”).
Term and Termination
This Agreement shall become effective upon execution by both parties, and shall remain in full force and effect until terminated in accordance with this the terms hereunder; provided, however, that neither party shall, by the termination of this Agreement, be relieved of their respective obligations and liabilities arising from or related to the Work provided prior to the date of such termination.
Either party may terminate this Agreement for any reason, at any time, upon thirty (30) days prior written notice. In such event, the Company shall be entitled to recover all monies due for that portion of the Work delivered in accordance with this Agreement prior to such termination, plus all costs actually incurred or committed in connection therewith.
Either party may terminate this Agreement upon written notice to the other party, with immediate effect, in the event such other party: (i) fails in any material respect to perform its material obligations under this Agreement within ten (10) days after written notice of such failure is received; (ii) becomes insolvent, or makes an assignment on behalf of creditors, or is the debtor named in voluntary bankruptcy, receivership, or like proceedings, or is the debtor named in involuntary bankruptcy, receivership, or like proceedings and fails to cause the same to be dismissed within ninety (90) days after the filing of such proceeding; or (iii) undergoes any change in legal or beneficial ownership or control.
Relationship of the Parties. The relationship of the parties hereunder shall be that of an independent contractor. Any provisions of this Agreement which may appear to give you the right to direct or exercise any measure of control over the Work shall be deemed to mean that the Company shall follow your desires in delivering the Work only and not in the means by which the Work is to be completed, and we shall have the complete right, obligation and authoritative control over the Work as to the manner, means or details as to how to perform the Work. Nothing herein shall be interpreted to create a master-servant or principal-agent relationship between you and the Company.
Payment. You hereby covenant and agree that you shall pay the Company for the Work according to the prices and rates contained in such written proposal for the Work signed and agreed to by the parties hereto, which prices and rates shall remain firm during the term of this Agreement, unless otherwise amended upon the mutual agreement of the parties evidenced in writing. You agree to pay the undisputed portion of Company’s invoices within twenty (20) days from receipt thereof. Payment is required in US Dollars in the form of a credit card charge, check or through a wire. Upon termination of this Agreement, all amounts owed to the Company for Work already performed, plus all costs actually incurred or committed in connection therewith, shall become immediately due and payable, less any amounts to which you are entitled hereunder. Except upon the Company’s termination of this Agreement without cause, or as otherwise agreed to in writing between you and the Company, all prepayments made by you for any annual or preventative maintenance programs offered by the Company in connection with the Work shall be nonrefundable.
Representations, Warranties and Covenants. Each party represents and warrants that is has full authority to execute and deliver this Agreement, and that performance of its obligations under this Agreement does not and will not breach any other agreement, either written or oral, entered into by it. Each party hereby covenants and agrees that, at all times, it shall comply with the laws of the United States of America, including all applicable federal and state securities laws, and the laws of any other applicable jurisdiction, in connection with this Agreement. You hereby additionally covenant and agree to provide us with reasonable access to the site, premises or location in which all Work is to be performed without material interruption or interference. We hereby additionally covenant and agree to, at our own expense, obtain from any applicable governmental authorities all permits, licenses, approvals and authorizations necessary to be obtained in connection with our proper performance of the Work.
Limitation of Liability; Disclaimer; Third-Party Indemnity.
Limitation of Liability. Under no circumstances shall we be liable to you for any damage to your property save for damage to the structure of the roof and for water ingress to the extent caused by our gross negligence or willful misconduct. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, UNDER NO CIRCUMSTANCES WILL WE BE LIABLE TO YOU FOR ANY EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES RELATING TO THE WORK, OR OTHERWISE ARISING FROM THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST BUSINESS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER BASED ON CONTRACT, TORT, (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR ANY OTHER CAUSE OF ACTION, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, the above disclaimers or limitations shall be so construed as to limit our liability to the maximum allowed possible, as applicable.
Disclaimer of Warranty. All Work will be performed in a workmanlike fashion according to general industry standards. Except as may be expressly set forth in this Agreement, the Work, and all services and products provided in connection therewith, are provided “as is” without any warranty of any kind, and no other warranties, whether express, implied, or otherwise, are made with respect to the same, including but not limited to any implied warranties of merchantability, fitness for a particular purpose or safety. We expressly disclaim any warranties not expressly stated herein.
Third-Party Indemnification. You agree to indemnify, defend, and hold us harmless to the fullest extent from and against any and all claims, damages, demands and all other liabilities, including, but not limited to, costs and attorneys’ fees, made by any third party against us arising out of or in connection with the Work, or any violation by you of the terms hereof, except for such claims, damages, demands and all other liabilities resulting from or arising out of our gross negligence or willful misconduct. To the extent damages are covered by property insurance, the parties waive all rights against each other and against the contractors, consultants, agents and employees of the other for damages, except such rights as they may have to the proceeds of such insurance. Each party shall require of the contractors, consultants, agents, and employees of any of them, similar waivers in favor of the other parties enumerated herein.
Photographs; Recordings. By accepting these terms and conditions, you hereby irrevocably grant permission to us to use your name, logos, and a brief description of your business for any purpose, including but not limited to our own commercial purposes, without compensation or credit to you, in any and all media now known or hereafter devised, including in our future marketing materials.
Legal and Equitable Remedies. You agree that it may be impossible to assess the damages caused by your violation of this Agreement. You agree that any threatened or actual violation of this Agreement or any of its terms will constitute immediate and irreparable injury to us, and we shall have the right to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief, without bond and without prejudice to any other rights and remedies that we may have for a breach or threatened breach of this Agreement.
Reasonableness of Restrictions. You agree that the restrictions contained in this Agreement are reasonable, proper, and necessitated by our legitimate business interests, and you represent and agree that you are entering into this Agreement freely and with knowledge of its contents with the intent to be bound by the Agreement and the restrictions contained herein. In the event that a court or tribunal finds this Agreement, or any of its restrictions, to be ambiguous, unenforceable, or invalid, you and we agree that such court or tribunal will read the Agreement as a whole and interpret the restriction(s) at issue to be enforceable and valid to the maximum extent allowed by law. If a court or tribunal declines to enforce this Agreement in the manner provided herein, you and we agree that this Agreement will be automatically modified to provide us with the maximum protection of its business interests allowed by law and you agree to be bound by this Agreement as modified.
Advice of Counsel. YOU ACKNOWLEDGE THAT, IN EXECUTING THIS AGREEMENT, YOU HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND YOU READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT WILL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION OF THIS AGREEMENT.
General Provisions.
10.1. Force Majeure. Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
10.2. Notices. Any notices required or permitted under this Agreement will be given to you or us at the address indicated on the signature page hereof, or at such other address as we or you may designate by written notice to the other. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, notice will be considered to have been given five business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, notice will be considered to have been given on the delivery date reflected by the courier or express mail service receipt.
10.3. Governing Law. This Agreement will be governed by and construed according to the laws of the State of Illinois as such laws are applied to agreements entered into and to be performed entirely within Illinois between residents of Illinois, without giving effect to the application of the principles pertaining to conflicts of laws.
10.4. Arbitration. Any dispute relating to the execution, interpretation or termination of this Agreement shall be resolved with binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Commercial Arbitration Rules of the American Arbitration Association (“AAA Commercial Arbitration Rules”), which are available at the AAA website, www.adr.org. You understand and acknowledge that any decision pursuant to such arbitration shall be final and binding upon the parties to the arbitration, and that without this provision, you would have the right to sue in court and have a jury trial. Payment of all arbitration fees and arbitrator compensation shall be governed by the AAA Commercial Arbitration Rules. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Cook County, IL and the proceedings shall be in English.
10.5. Waiver of Jury Trial. EACH PARTY HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HEREBY (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE SAME HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (II) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.6. Severability. In case any one or more of the provisions, subsections, or sentences contained in this Agreement will, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect the other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained in this Agreement. If moreover, any one or more of the provisions contained in this Agreement will for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it will be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it will then appear.
10.7 Successors and Assigns. This Agreement is for your benefit and the benefit of us, our successors and assigns. You shall not be allowed to assign this Agreement without our prior written consent.
10.8. Survival. The obligations of the parties under this Agreement that by their nature would continue beyond expiration, termination or cancellation of this Agreement (including, without limitation, this Section 10.8 and Sections 1.1, 3, 5, 6, 7, 10.3, 10.4, 10.5, and 10.6) shall survive any such expiration, termination or cancellation.
10.9. Waiver. No waiver by us of any breach of this Agreement will be a waiver of any preceding or succeeding breach. No waiver by us of any right under this Agreement will be construed as a waiver of any other right. We shall not be required to give notice to enforce strict adherence to all terms of this Agreement.
10.10. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument. This Agreement may also be executed and delivered by facsimile signature, PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000.
Agreement for Business Consumer Credit Report
Eagle Trading International Corp.’s DBA RoofingSource use of business consumer credit report on the undersigned in order to further evaluate the credit worthiness of the undersigned Applicant Business in connection with the extension of the business credit as contemplated by this credit application. The undersigned hereby authorizes Eagle Trading International Corp. DBA RoofingSource to utilize a credit report on the Applicant Business from time to time in connection with the extension or continuation of the business credit represented by the credit application.
Agreement for a Commercial Account
Applicant hereby applies to Eagle Trading International Corp. DBA RoofingSource to open a commercial account in Applicant’s name and hereby requests RoofingSource from time to time to extend credit to enable Applicant to buy goods or services from RoofingSource for business or commercial purposes only.
As an inducement to RoofingSource to extend credit, and in consideration of RoofingSource agreeing to extend credit to Applicant, Applicant states as follows:
1. Applicant represents and warrants that all information including but not limited to the information on the Application for Credit, given in connection with this Application and Agreement (“Agreement”) is true and correct as of the date of this application. Applicant agrees to provide RoofingSource with notice of changes to the information contained on the face and back of this agreement as they occur.
2. Applicant agrees to pay upon receipt of invoice (“Payment Due Date”).
3. If any invoice remains unpaid after the Payment Due Date then RoofingSource has the right to not fulfill further orders and need not notify Applicant.
4. If any amount due remains unpaid upon 20 days of invoicing, Applicant shall pay to RoofingSource a late charge on all past due amounts until such amounts are paid in full.
5. The late charge shall be one point five percent compounding on a monthly basis after the initial interest charge at twenty days.
6. If Applicant pays any invoice with a check, and the check is returned from Applicant’s bank unpaid for any reason, Applicant will pay a service charge of thirty-five dollars or one half of one percent of the face amount the check, whichever is greater. The service charge will be along with any late charges that may be applicable.
7. This agreement shall be a continuing agreement and shall apply to each purchase. Applicant agrees that RoofingSource can change or amend any of the terms on this Agreement. Applicant’s continued use of commercial charge account after the effective date of the amendment or change shall be deemed acceptance of the changed terms.
8. This is intended to be a continuing Agreement and shall continue as to all new indebtedness incurred unless and until a written notice is served upon Eagle Trading International Corp. DBA RoofingSource by certified mail return requested; declaring said Agreement shall not apply to the future purchases. Such termination to be effective following the receipt of the notice. Termination of this Agreement shall result in all subsequent orders being fulfilled on a prepaid basis only.
9. Applicant agrees to hold harmless Eagle Trading International Corp. DBA RoofingSource for any damages resulting from the withholding and / or delay of order fulfillment to Applicant resulting from events outside the control of Eagle Trading International Corp DBA RoofingSource.
10. Applicant understand and agrees that RoofingSource’s liability of damages as a result of failure of any product shall be limited to the cost of replacement of the goods supplied, and RoofingSource shall not be liable for any incidental or consequential damages arising therefrom.
11. Applicant agrees to submit to the jurisdiction of the Circuit Court of Cook County Illinois.
12. Applicant and RoofingSource hereby waive the right to a jury trial for any claim arising from the enforcement of this agreement.
13. Applicant will pay all expenses, including reasonable attorneys’ fees, incurred by RoofingSource in the enforcement of this agreement and the collection of any charges due thereunder.
14. RoofingSource’s failure to exercise any of its rights hereunder shall not be deemed a waiver of RoofingSource’s rights under this agreement.
The Applicant authorizes RoofingSource to request and to obtain credit information from Applicant’s trade, bank, and personal references. Applicant authorizes the references contacted by RoofingSource to release to RoofingSource the information concerning the status and conduct of the Applicant’s business. Applicant states that they have read all terms and conditions stated on this form. Applicant agrees that those terms and conditions govern this application for an account.