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TOP TIER, LLC

Terms, Conditions, Indemnification and Limitation of Liability

LIMITATION OF LIABILITY:  Customer acknowledges that Top Tier, LLC is not an insurer of or against any potential or actual loss or damage to person or property, whether direct, incidental and/or consequential, that may occur in or at the premises.  Top Tier, LLC’s total liability to customer for damages for any claims, losses or damages arising out of or in any way related to any cause whatsoever in relation to this agreement, whether based in contract, tort (including where Top Tier, LLC is alleged to be negligent), strict liability, breach of warranty or other cause, shall not exceed $1,000.  Notwithstanding the foregoing sentence, under no circumstances shall Top Tier, LLC be liable for any damages for loss of use, interruption of business, lost profits, revenue or opportunity, claims of third parties or for injury to persons or property or for any other special, exemplary, incidental, indirect, punitive, consequential or other damages of any kind or nature (including those allegedly resulting from Top Tier, LLC’s own negligence).  If Top Tier, LLC is found liable for any loss or damage due to its gross negligence, Top Tier, LLC’s liability shall not exceed $7,500.00. 

LIMITATION OF LIABILITY FOR PLUMBING SYSTEM:  In addition to the above terms found under the above section titled “Limitation of Liability,” Customer acknowledges that it is Customer’s responsibility to maintain its plumbing system.  Customer expressly agrees Top Tier, LLC shall not be responsible for damages arising from a plumbing system that was not installed in a manner compliant with current applicable building codes, except in the event of Top Tier, LLC’s sole negligence. 

LIMITATION OF LIABILITY FOR WELL AND SEPTIC SYSTEM INSPECTIONS:  In addition to the above terms found under the above section titled “Limitation of Liability,” Customer acknowledges that Top Tier, LLC shall not be liable for any claims for any improper and/or imperfect performance based on the failure of any system to function effectively due to causes beyond the control of Top Tier, LLC, such as wear and tear, tampering, changes to the protected areas, failure of Customer to authorize modifications or repairs or conduct required or recommended inspection/testing/maintenance, intentional and/or violent acts of third parties against Customer’s employees, invitees, licensees, trespassers or others on the premises, and faulty design/installation by others. 

LIMITATION OF LIABILITY FOR PLUMBING IN ATTIC SPACES/EXTERIOR WALLS:  In addition to the above terms found under the above section titled “Limitation of Liability,” Customer acknowledges that it is Customer’s responsibility if the building design requires plumbing to be installed in exterior walls or attic spaces to maintain freeze protection.  Top Tier, LLC is not responsible for insulating any portion of the building.

WARRANTY DISCLAIMER:  Except as provided in any specific warranty paragraphs, Top Tier, LLC makes no warranty of any kind, express or implied, including but not limited to, any warranty of merchantability or warranty of fitness for a particular purpose.

INDEMNIFICATION:  Customer agrees to indemnify, hold harmless, defend, and release Top Tier, LLC from liability and shall reimburse Top Tier, LLC for any liabilities, damages, losses or expenses (including reasonable attorneys’ fees, expert fees and costs including litigation costs), injuries, claims, suits, judgments, and causes of action incurred by Top Tier, LLC in connection with any claims, suits, judgments and causes of action which relate to the products or services Top Tier, LLC provides. This indemnity includes claims brought by any third party, including, without limitation, Customer’s insurance Top Tier, LLC, whether the claim arises under contract, warranty, tort (including where Top Tier, LLC is alleged to be negligent), or any other theory of liability. This agreement to indemnify, hold harmless, release, and defend Top Tier, LLC from liability includes claims where Top Tier, LLC is alleged to be negligent, solely negligent or partially negligent, in any way.

WAIVER OF SUBROGATION:  In case of any claim or loss, Customer agrees that it is responsible to maintain, and has sufficient insurance coverage to cover any potential claim or loss. Customer further agrees to look to its property and/or general liability insurance carrier for reimbursement. Customer and Top Tier, LLC mutually agree to release one another from any and all claims with respect to any loss covered by (or which should have been covered) the insurance coverages which were required and/or recommended that may be applicable to any property where Top Tier, LLC performs services and/or provides materials for Top Tier, LLC.  For purposes of this Section, all deductibles shall be considered insured losses. They further mutually agree that their respective insurance companies shall have no right of subrogation against the other for any claim or loss, including but not limited to, of any nature arising out of or connected to Top Tier, LLC’s actions or inactions (including its own negligence) in any way.

CUSTOMER RESPONSIBILITIES:  Customer has a duty to disclose any facts to Top Tier, LLC that have any potential to affect its past, present, and/or future work in any way. This duty continues after the work is completed. Customer’s failure to disclose any of these facts to Top Tier, LLC within two weeks of discovery of said facts constitutes estoppel and/or waiver of Customer’s ability to bring any claims, losses or damages arising out of or in any way related to any cause whatsoever in relation to this agreement, whether based in contract, tort (including where Top Tier, LLC is alleged to be negligent), strict liability, breach of warranty or other cause.  Customer shall be responsible for exercising due care in all regards, including but not limited to, cleaning, maintaining, and inspecting all plumbing systems. If Customer contracts with Top Tier, LLC to provide maintenance, cleaning, and/or inspection of said plumbing systems at certain time intervals, then Customer shall be responsible for exercising due care in all regards, including but not limited to, cleaning, maintaining, and inspecting all plumbing systems in between these contracted-for intervals. Customer’s failure to exercise due care in any regard constitutes estoppel and/or waiver of Customer’s ability to bring any claims, losses or damages arising out of or in any way related to any cause whatsoever in relation to this agreement, whether based in contract, tort (including where Top Tier, LLC is alleged to be negligent), strict liability, breach of warranty or other cause.  Customer shall be responsible for maintaining adequate heat throughout the facility to prevent freezing or damage to the existing plumbing system. The customer understands and expressly acknowledges that plumbing systems are susceptible to damage by water intrusion, ice, or other conditions inside the piping that Top Tier, LLC cannot detect upon inspection. In the event that water, ice, or other conditions occur which render the plumbing system inoperable or damaged, Top Tier, LLC expressly disclaims any responsibility for such conditions, and assumes no responsibility to investigate the cause, source or extent of such condition.

CONTRACTUAL LIMITATION PERIOD:  Customer expressly agrees that any claim, lawsuit, or cause of action, whether in contract, tort or other legal theory, relating in any way and/or arising out of Top Tier, LLC’s services and/or materials provided to Customer, its subsidiaries and/or its insurers, must be filed no more than one (1) year from the date the alleged damage(s) occurs, that is the subject of the claim, lawsuit and/or cause of action. Customer expressly waives any statutory and/or common law limitation period to the contrary.

LAW AND JURISDICTION:  This Agreement will be governed by, construed, and enforced in accordance with the laws of the State of Wisconsin.

SEVERABILITY:  If any provision of this Agreement is held illegal or unenforceable in a judicial proceeding, such provision shall be severed and shall be inoperative, and the remainder of this Agreement shall remain operative and binding on the Parties.

INTEGRATION:  This Agreement supersedes all prior agreements between the parties with respect to its subject matter and constitutes (along with the documents referred to in this Agreement) a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter.

NOTICE OF LIEN RIGHTS:  As required by the Wisconsin Construction lien law, you are hereby notified that persons or companies performing, furnishing or procuring labor, services, materials, plans or specifications for the construction on your property may have lien rights on your land and buildings if they are not paid.  Those entitled to lien rights, in addition to Top Tier, LLC are those who contract directly with you or those who are required to and do give you notice within sixty (60) days after they first perform, furnish or procure labor, services, materials, plans and/or specifications for the construction.  Accordingly, you probably will receive identification notices from those who perform, furnish or procure labor, services, materials, plans of specification for the construction.  You should give a copy of each notice you receive to your mortgage lender, if any.  Top Tier, LLC agrees to cooperate with you and your lender, if any, to see that all potential lien claimants are duly paid.

NOTICE AND OPPORTUNITY TO REPAIR:  Wisconsin Statutes Section 895.07(2) and (3) requires you deliver to Top Tier, LLC a written notice of any construction conditions you allege are defective before you file a lawsuit, and you must provide Top Tier, LLC the opportunity to make an offer to repair or remedy the alleged construction defects.

PAYMENT TERMS:  All payments due under this Agreement to Top Tier, LLC shall be made in dollars by cash, check, wire transfer or credit card.  Finance charges will be assessed at 18% annually after 30 days.  A 3% surcharge is charged on payment by credit card for any amount $5,000 or greater.

PROPOSAL TIMEFRAME:  Any proposal may be withdrawn by Top Tier, LLC if not accepted within 30 days.  Any proposal will not go into effect and no job shall be started until this proposal has been returned, within 30 days of the proposed start date, with the appropriate signatures.

TIMELY COMPLETION:  We agree to work with the general contractor to supply labor and material as required on the project.  In order to prevent any delays in work, we require timely advance notice – 2 weeks is desired – of each phase of the project – i.e. underground, above ground, and final fixture set to schedule our work accordingly.  If additional on-site trips are required due to the general contractor or other subcontractors not having the project at the appropriate ready-stage when we have scheduled our work, this may result in additional trip and time charges.
 
FIXTURES:  In order to avoid delays, we require final fixture decisions to be made at a minimum 1 month before fixture setting is scheduled, 2 months before fixture setting if granite, quartz or other hard surface countertop materials are involved.  Any changes after this date may result in time delays, restocking fees or the full price of the fixture if non-returnable or non-cancelable.

TUB/SHOWER MODULES: Top Tier is not responsible for protecting tub/shower modules from any damage after installation.  Customer expressly agrees that any damage, scratches, construction debris are their responsibility after installation date.