Bolster's Terms and Conditions for Contractors
Bolster's Terms and Conditions below outline our mutual roles and responsibilities while delivering renovation projects for Bolster customers and are to be accepted by you on each and every renovation project you undertake with Bolster. Please review and accept these Terms and Conditions to proceed to the Project Contract signing phase of a new project.
These Bolster Terms & Conditions for Contractors (this “Agreement”) are entered into and made effective as of the date of acceptance (the “Effective Date”) by and between Bolster Corporation, a Delaware corporation, with offices at 500 West 30th Street, New York, NY 10001 (“Bolster”), and the contractor accepting below (“Contractor”).
Background: The contractor, after receiving a qualified sales lead from Bolster, has submitted a Golden Bid and been awarded the project. and now requires a Bolster Project Contract to memorialize their Golden Bid. Bolster, in it's obligation to the customer, requires the contractor to be performance bonded using the Bolster Remodeling Bond, and apply the bond to the Project. Both Contractor and the owner will then commence work on the Project.
Bolster and Contractor agree as follows:
1.1 “Authorized Contract Templates” has the meaning set forth in Exhibit A (State-Specific Provisions).
1.2 “Bolster Home Renovation Bond” means a Bolster-approved blanket performance, payment and warranty surety bond issued by a Surety Provider (a) naming Contractor as principal, (b) covering projects approved by Bolster and commenced by the Contractor within twelve months of the issue date, and (c) covering an aggregate liability arising from such projects up to a specified penal sum.
1.3 “Contract Price” means the total fixed-price construction cost of the Project as specified in the Project Contract.
1.4 “Owner” or “Homeowner” means the owner, homeowner or consumer specified in the Project Contract.
1.5 “Project” means the renovation project to be completed under the Project Contract.
1.6 “Project Contract” means the home renovation contract between the Bolster Contractor and an owner or consumer (to be) covered by the Bolster Home Renovation Bond.
1.7 “Surety Provider” means a Bolster-approved surety bond provider.
1.8 “Website” means the Bolster website, currently accessible at bolster.us through which Contractor and Owner can access information and tools relating to the Bolster Home Renovation Bond and the Project.
1.9 “Work” means any work performed or to be performed by Contractor under the Project Contract.
2. Project Bids & Contracts.
2.1 Project Bids. The Contractor agrees that it is the Contractor’s (and not Bolster’s) responsibility to confirm each bid (a.k.a Golden Bid) includes satisfactory terms including (a) a comprehensive and detailed scope of work, (b) an overall fixed price with specific and detailed pricing for materials and labor tasks, (c) clear responsibility for purchase of materials, (d) specific amounts and timing for advances and payments, and (e) a clear schedule for work completion milestones.
2.2 Project Contract.
(a) Preparation and Execution. If the Contractor desires for an owner to select their Golden Bid for a project, and to commence such project under coverage of the Bolster Home Renovation Bond, Contractor must sign a valid Project Contract incorporating such Golden Bid. The Contractor acknowledges and agrees that (i) the Contractor and Owner share exclusive responsibility to accurately and comprehensively prepare and complete a Project Contract incorporating the contractor’s Golden Bid, (ii) Contractor shall sign the Project Contract first and Owner must countersign (and pay all Bolster fees) with fourteen days or Contractor will be entitled to withdraw the Project Contract or renegotiate price, scope of work, and schedule, and (iii) the Project Contract exclusively governs the respective rights and obligations between the Contractor and Owner regarding a Project.
(b) Use of Authorised Contract Templates Only. The Contractor agrees that the Project Contract is based exactly on an Authorized Contract Template as provided by Bolster, and that no modification to, amendment of, or deviation from an Authorized Contract Template (except to accurately complete factual fields in the template) will be made unless expressly authorized in writing by the Surety Provider. The Contractor represents that they have had the opportunity to consult with an attorney for review and advice regarding the applicable Authorized Contract Template, the completed Project Contract, and this Agreement.
(c) Fixed Price Only. The Contractor shall ensure that the Project Contract specifies a single, comprehensive fixed Price for the Project.
(d) Cancellation Rights. The Contractor acknowledges that the Owner has certain upfront rights to terminate the Project Contract including under state and federal laws.
(e) Compliance. The Contractor shall comply with all of its responsibilities and obligations under the Project Contract, including the deliver of all Bolster Projects in accordance with “Bolster’s Renovation Quality STandards 2015”.
(f) No Assignment. The Contractor may not assign the Project Contract without the prior written consent of Bolster and the Surety Provider.
2.3 Residential Remodeling Projects Only. The Contractor represents that the Project is residential remodeling or residential custom home construction, and acknowledges that no commercial construction is permitted hereunder or under the Bolster Home Renovation Bond.
2.4 No Design Work. The Contractor acknowledges and agrees that only construction work, and no design work, is permitted to be contracted for and/or performed under the Project Contract, although design work may be separately provided under a different contract not in connection with the Bolster Home Renovation Bond. The Contractor represents that any design work necessary for a Project has been performed by a registered architect or otherwise approved by a registered architect or engineer in conformance with local laws, and that the Contractor and Owner shall mutually determine who shall be responsible for providing final and complete construction documents (including plans, drawings and specifications) incorporating such design work (as applicable) for each Project.
3. Bolster Home Renovation Bond.
3.1 Surety Provider. The Contractor acknowledges and agrees that (a) the Bolster Home Renovation Bond covering the Project is underwritten and provided by a third party Surety Provider, not Bolster, (b) all rights and remedies of Owner pursuant to such bond are solely provided by (and are solely the liabilities of) the Surety Provider, not Bolster, and (c) Bolster shall have no liabilities whatsoever to the Contractor or Owner in connection with or pursuant to such bond, except as may be expressly provided in this Article 3.
3.2 Surety Diligence. The Contractor shall cooperate with the Surety Provider and promptly provide any requested or required documentation. The Contractor acknowledges that the Surety Provider may in its sole discretion (a) decline to approve or issue a Bolster Home Renovation Bond to the Contractor, (b) decline to apply the Bolster Home Renovation Bond to the contemplated project, (c) cancel the Bolster Home Renovation Bond at any time (except with respect to projects that have already commenced under coverage), and/or (d) require the Contractor to reapply for a previously approved Bolster Home Renovation Bond.
3.3 New Bond. If the Contractor is not yet covered by a Bolster Home Renovation Bond, Bolster shall cause a Surety Provider to issue a Bolster Home Renovation Bond covering the Project Contract, with a penal sum equal to the Contract Price, provided that (a) all Project fees have been paid by Owner to Bolster, (b) Surety Provider approves the Contractor, (c) the Contractor has provided all requested or required documentation to the Surety Provider, including a signed bond form and a signed general indemnity agreement, and (d) the Project Contract signed by the Contractor and Owner has been uploaded to the Website. The Contractor represents that Contractor has had the opportunity to consult with an attorney for review and advice regarding the Bolster Home Renovation Bond, a simple of which is available on the Website. Bolster shall be responsible for any premium payments to Surety Provider for such bond coverage.
3.4 Existing Bond. If the Contractor is already covered by a Bolster Home Renovation Bond, Bolster shall cause the Surety Provider to apply the bond to the new Project Contract, and to increase the penal sum as necessary to cover the Contract Price in addition to any other covered projects or warranties then in progress, provided that (a) all Project fees have been paid by Owner to Bolster, (b) the Project Contract is signed by the Contractor and the Owner before the twelve month anniversary of the issue (or renewal) date of the Bolster Home Renovation Bond, and (c) the Project Contract signed by the Contractor and the Owner has has been uploaded to the Website. Bolster shall be responsible for any premium payments to Surety Provider for such bond coverage.
3.5 Bolster as Obligee. The Contractor acknowledges and agrees that (a) Bolster is the obligee for the benefit of the Owner under the Bolster Home Renovation Bond, (b) Bolster as obligee is operating solely in a purely ministerial capacity to enable such bond to apply to multiple owners and projects, and (c) Bolster is not a fiduciary to the Contractor in any capacity and shall have no implied or inferred duties, responsibilities or obligations. Bolster shall have no responsibilities and obligations to the Contractor as obligee under the bond.
3.6 Bond Compliance. The Contractor shall make no act or omission that prejudices or impairs the Owner’s rights under the Bolster Home Renovation Bond.
3.7 Bond Remediation. The Contractor acknowledges that if the Owner desires to seek remedy under the Bolster Home Renovation Bond, then the Owner would directly file a claim with the Surety Provider in compliance with such surety’s claims submission and management process. The Contractor further acknowledges that, if Surety Provider determines the Bolster Home Renovation Bond is triggered with respect to the Project, then Surety Provider in its sole discretion may elect whether to (a) have the Contractor continue and complete the Project, (b) replace the Contractor with an alternative contractor to complete the Project, or (c) provide a lump-sum payment to enable the Owner to retain an alternative contractor to complete the Project.
4. Project Management.
4.1 Commencement. The Contractor shall not commence any Work until (a) any upfront termination rights of the Owner under the Project Contract and state and federal law have expired or been waived, and (b) the Contractor has received a written confirmation of bonding by Bolster or the Surety Provider.
4.2 Change Orders. The Contractor acknowledges and agrees that change orders under the Project Contract are not covered by the Bolster Home Renovation Bond unless (a) a change order is submitted to and approved by the Surety Provider via the Website, and (b) the Owner pays to Bolster the additional incremental fee associated with such change order by the applicable deadline.
4.3 Records. Bolster shall maintain all documents and files uploaded to the Website regarding a Project until at least the end of the associated twelve-month warranty period, after which Bolster may retain or delete such documents and files in its sole discretion.
4.4 Quality. The Contractor shall deliver the Owner’s Project in accordance with “Bolster’s Renovation Quality Standards 2015”, a copy of which is available upon request and can be found on the website.
4.5 Completion. The Contractor shall ensure that substantial and final completion are promptly memorialized in accordance with the Project Contract.
5. Project Payments.
5.1 General. Contractor acknowledges and agrees that payments from Bolster via Owner to Contractor for Work are governed by the terms of the Project Contract, and that Bolster shall have no liability to Contractor whatsoever regarding any breach by Owner of the Project Contract, or in connection with any act or omission of Owner, including failure to make payments.
5.2 Mechanic’s Liens. Contractor shall pay all subcontractors and suppliers in a timely manner, and shall submit all payment requests to Bolster via email accompanied with valid conditional lien releases covering the work or materials for which payment is requested, including conditional lien releases from all applicable subcontractors and suppliers. Contractor shall also provide final mechanic’s lien releases via email from itself and from all of its subcontractors and suppliers to Bolster upon final completion of the Project and receipt of all payments. Bolster will in turn ensure these documents are delivered alongside payment requests in a timely manner to the Owner.
6.1 No Fees from Owner. Bolster charges no direct fees to the Owner.
6.2 Fees from Contractor. Bolster charges an upfront fee to Contractor as a “cost of protection,” and may charge incremental fees for change orders approved by the Owner that the Owner requests to be covered under the Bolster Home Renovation Bond. Bolster also charges an upfront fee to Contractors as a “marketing and technology fee” for the provision of qualified sales leads and business services rendered during the delivery of Bolster Projects.
7. Indemnification; Limitation of Liability
7.1 Representations and Warranties. The Contractor represents and warrants that the Contractor is in full compliance with all applicable law, has all licenses, approvals and insurance necessary to conduct business, and will provide the Work and complete the Project in compliance with all applicable laws, rules and regulations.
7.2 Indemnification. The Contractor shall, to the fullest extent permitted by law, indemnify, hold harmless and defend Bolster, and any of its officers, directors, employees, representatives, agents or customers, from and against any and all liabilities, losses, damages, costs and expenses (including attorneys’ fees and expenses) based upon or in connection with any action or claim by a third party arising out of (a) any actual or alleged breach by the Contractor of its representations, warranties and covenants contained in this Agreement or the Project Contract, (b) any negligent acts or omissions, or willful misconduct, of the Contractor, (c) any violation of law or infringement of the rights of others by the Contractor, or (d) any bodily injury, sickness, death or property damage or distruction in connection with the Project. The Contractor shall solely conduct the defense of any such claim or action and all negotiations for its settlement or compromise; provided, however, that (i) no settlement or compromise shall be entered into or agreed to without Bolster’s prior approval and (ii) Bolster shall have the right to participate, at its own expense, in the defense and/or settlement of any such claim or action in order to protect its own interests.
7.3 No Warranties. The services AND PRODUCTS Provided by bolster to THE CONTRACTOR hereunder, ALL INFORMATION (including blogs, RECOMMENDATIONS, ADVICE AND SAMPLE DOCUMENTS) ON THE WEBSITE, AND ALL TEMPLATES are provided “as is,” and Bolster disclaimS all warranties (express, implied, statutory and otherwise) with respect TO THEM, including any warranty of merchantability, non-infringement or fitness for a particular purpose. Bolster makes no representations or warranties to the Contractor with respect to the Owner or the Owner’s performance under the Project Contract.
7.4 Limitation of Liability. IN NO EVENT SHALL BOLSTER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES IN ANY MANNER IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The Contractor acknowledges and agrees that Bolster shall have no responsibility, obligation, or liability for the failure or refusal of the Owner to meet its contractual obligations to the Contractor or to Bolster, or if any of the provisions or understandings herein or in the Project Contract are determined by a court of law to be invalid or unenforceable.
7.5 Certain Jurisdictions. Certain jurisdictions may not allow limitations on implied warranties or the exclusion or limitation of certain damages. If THE CONTRACTOR resideS in such a jurisdiction, some or all of the above disclaimers, exclusions or limitations may not apply to THE OWNER, and THE CONTRACTOR may have additional rights. The disclaimers, limitations or exclusions of warranties, remedies or liability contained in these Terms apply to THE CONTRACTOR to the fullest extent permitted under the laws of the jurisdiction in which THE CONTRACTOR IS located.
7.6 No Legal Advice. All information (including blogs, recommendations, advice and sample documents) is provided for informational and educational purposes only. No legal advice is being given, and no attorney-client relationship is created by use of such information or any contract templates.
7.7 AIA Disclaimer. The Contractor acknowledges and agrees that (a) the American Institute of Architects (AIA) and Bolster are not legal partners, (b) the Bolster Home Renovation Bond and the services and products offered on the Bolster website are offered solely by Bolster, and are not offered or provided by the AIA in any way, and (c) the AIA shall bear no liability or responsibility whatsoever for the Bolster Home Renovation Bond and the services and products offered on the Website.
8. Term and Termination
8.1 Term. This Agreement shall commence on the Effective Date and shall continue thereafter for a period of twelve months following the date of substantial completion of the Project unless earlier terminated (the “Term”).
8.2 Termination for Breach. If there is a material breach of this Agreement (or any other agreement between the parties) by a party, the other party may (reserving cumulatively all other remedies and rights under this Agreement and in law and in equity) terminate this Agreement by giving 30 days notice; provided, however, that such termination shall not be effective if the breach specified in such notice has been cured prior to the expiration of such 30 days.
8.3 Other Termination. Bolster may also terminate this Agreement if (a) the Project Contract is terminated by the Owner or the Contractor, (b) the Contractor’s Bolster Home Renovation Bond is cancelled or expires, (c) the Contractor becomes insolvent, or (d) the Contractor makes an assignment of any of its assets for the benefit of its creditors or is a party to voluntary or involuntary bankruptcy proceedings.
8.4 Effect of Termination. Any provision herein which, either by its terms or to give effect to its meaning, must survive, including Article 1, Article 7, Article 9, and this Article 8, shall survive the expiration or termination of this Agreement.
9.1 Miscellaneous. The Contractor may not assign, transfer, convey or subcontract this Agreement, or any rights or obligations hereunder, to any other party without Bolster’s prior consent and any attempt to do so shall be void ab inicio. For the avoidance of doubt, Bolster shall have the right to assign, transfer, convey or subcontract this Agreement, or any rights or obligations hereunder, without the consent of the Contractor. This Agreement shall be binding upon, and enforceable by, and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. The parties agree to the governing law and venue set forth in Exhibit A (State-Specific Provisions). No amendment, modification, waiver or discharge of any provision of this Agreement shall be valid unless made in writing and signed by the party against whom enforcement is sought. No failure or delay by either party to exercise any right or enforce any obligation shall impair or be construed as a waiver or on-going waiver of that or any or other right or power, unless made in writing and signed by such party. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining provisions shall be unimpaired and remain in full force and effect. The parties agree that the Surety Provider shall be a third party beneficiary of this Agreement. Whenever examples are used in this Agreement with the words “including,” “for example,” “e.g.,” “such as,” “etc. “ or any derivation thereof, such examples are intended to be illustrative and not in limitation thereof.
9.2 Notices. All notices and other communications hereunder shall be in writing and delivered via email, personally, mailed via certified mail or a nationally recognized overnight courier, to (a) if to Contractor, the address set forth below, or (b) if to Bolster via email at legal AT Bolster dot US or if in writing to Bolster Corporation, Attention: Legal Department, 500 West 30th Street, Unit 16P, New York, NY, 10001. All notices shall be deemed given on the date emailed, personally delivered or when placed in the mail as specified.
STATE-SPECIFIC PROVISIONS (NY)
A.1 “Authorized Contract Templates” mean one of the following:
- The Bolster Project Contract 2015
- Form of home improvement estimate and contract prepared by the NYC DCA, together with the applicable Bolster rider, as provided by Bolster and obtained by Owner through the Website.
- AIA Document A105-2007 (“Standard Form of Agreement Between Owner and Contractor for a Residential or Small Commercial Project”), together with the applicable Bolster rider, as obtained by Owner from the American Institute of Architects (aia.org) and through the Website. Note that AIA A105-2007 and the applicable Bolster rider may be used only if a licensed architect has been retained by Owner using AIA Document B105-2007 (“Standard Form of Agreement Between Owner and Architect for a Residential or Small Commercial Project”).
A.2 Governing Law; Venue. This Agreement and all disputes, claims, actions, suits or other proceedings arising hereunder shall be governed by the substantive law of the State of New York applicable to contracts wholly made and to be performed within the State of New York. Each party irrevocably submits to the sole and exclusive jurisdiction of the courts of New York State and the federal courts of the Southern District of New York, situated in the City, County and State of New York. Each party irrevocably consents to the exercise of personal jurisdiction over each of the parties by such courts and waives any right to plead, claim or allege that New York is an inconvenient forum.