PBC Terms & Conditions

The Company and Customer (collectively referred to as “Parties”) hereby agree as follows:
 

Section 1. Quality of Work

1.1 Warranty. Company warrants and guarantees for a period of one (1) year that all materials and equipment incorporated in the Work shall be of the quality and grade required or permitted by the Proposal and that all Work shall be performed in substantial conformance with the requirements of the Proposal. Customer shall have the right to reject any portion of the Work not in substantial conformance with the requirements of the Proposal, and Company shall promptly replace or repair rejected portions of Work. Further, upon the receipt of a written notice from Customer, Company shall promptly repair and make good in accordance with the Proposal any substantial nonconformance that may appear in Work within one (1) year after final completion of the Work. THE WARRANTIES PROVIDED IN THIS SERVICES CONTRACT ARE EXCLUSIVE AND NO OTHER WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER STATUTORY, EXPRESS, OR IMPLIED, APPLY. ALL SUCH OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, AND CONDITIONS ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED AND WAIVED BY CUSTOMER, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Notwithstanding any other provision, the express remedies of replacement or repair stated in this provision for a breach of warranty are the sole and exclusive remedies available to Customer for such breach.

If Customer invoice is not paid within 45 days of receipt, this warranty is void.

Section 2. Schedule of Performance

2.1 Commencement and Scheduling.  Company will commence the Work on the date mutually agreed to between Company and Customer. The agreed commencement date will be reflected in a notice to proceed issued by Customer. If Company agrees to the commencement date, it will acknowledge and return the notice to proceed to Customer. If Customer fails to issue a notice to proceed within ninety (90) days from Customer’s execution of the Proposal, Company may terminate the Proposal and recover from Customer any reasonable pre-construction costs incurred prior to the date of termination.  Company shall endeavor to achieve substantial completion of the Work within the scheduled timeframe. However, all completion dates are estimates and no date for completion of the Work is guaranteed by Company.

Customer and Company hereby acknowledge and agree that the durations expressed in Company’s Proposal are the minimum durations necessary for proper performance of the Work. Should schedule revisions or re-sequencing be necessary for coordination with the schedules of Customer, Company’s schedule for individual portions of the Work shall not be reduced below the minimum expressed durations for the performance of that Work.

2.2 No Damages for Delay. Notwithstanding anything to the contrary, Company shall not be liable to Customer for any damages, losses, claims, or expenses arising out of or associated with any delay or hindrance to the Work, regardless of the source of the delay or hindrance EVEN IF SUCH DELAY OR HINDRANCE RESULTS FROM, ARISES OUT OF OR IS DUE, IN WHOLE OR IN PART, TO THE NEGLIGENCE, BREACH OF CONTRACT OR OTHER FAULT OF THE COMPANY.

“Unavoidable Delays” shall include, but not be limited to war, insurrection, civil commotion, strikes, slowdowns, lock-outs, riots, floods, earthquakes, fires, casualties, weather delays, acts of God, acts of a public enemy or terrorist, epidemics, freight embargoes or restrictions, lack of transportation, governmental moratoriums, severe or abnormal weather, or acts or omissions by Customer that interfere with Company’s duties.

If the Company is delayed at any time in progress of the Work by changes ordered in the Work, or Unavoidable Delays, unusual delay in deliveries, unavoidable casualties or other causes beyond the Company’s control, including owner-caused or Customer-caused delays and weather-related events, the time allotted for completion of the Work and the applicable fees will be equitably adjusted.

2.3 Acceleration of the Work. If Customer or owner desires to accelerate the Work under this Services Contract, Customer may request that Company prosecute its Work on an overtime basis or add additional shifts to achieve such acceleration. Such requests for acceleration are subject to Company’s approval and acceptance, and all costs therefor shall be borne by Customer.

Section 3. Proposal

3.1 Site Conditions. Company has physically visited the project site and verified the visual conditions under which Work is to be performed, including all applicable laws, rules, ordinances and regulations of governmental authorities, and requirements for access, accommodation, facilities, personnel, power, transport, water and other services. Company has not verified conditions undetectable by reasonable visual inspection, including concealed conditions. If Company encounters conditions at the site that materially differ from the information supplied by Customer or from the visual inspection of the project site, Company shall be entitled to an equitable adjustment to the fees charged by Company and time for performance.

3.2 Information and Services Required of Owner. Customer shall furnish all necessary surveys, a legal description of the site and as-built information related to the project site. Company shall be entitled to rely upon the accuracy of all Customer-furnished information, including, but not limited to, drawings, specifications, surveys, legal description, testing and reports. Company shall not be held responsible for, and Customer agrees to waive all claims against Company arising from, any errors, inconsistencies, or inaccuracy in any such Customer-provided information.

If there is an error, omission, inconsistency, or inaccuracy in the drawings, specifications, or any other Customer-provided information, Company shall be entitled to an equitable adjustment of the applicable fees for the Work and time for performance as reasonably required. Customer warrants and represents to Company that the information supplied by Customer for the project, including without limitation, information related to site conditions, obstructions and utilities, is accurate and Company may rely upon such information to perform and complete the Work.

3.3 Conflicts between Proposal. In the event of a conflict between these PBC Terms & Conditions and the other Proposal, the provisions of the Proposal shall control.

Section 4. Company Obligations

4.1 General Scope of Work. Company is familiar with the type of Work contemplated herein and is capable of performing the Work in accordance with the Proposal. Unless expressly provided otherwise herein or in the Proposal, Company shall provide all supervision, labor, materials, supplies, and equipment necessary to complete the Work. Company shall endeavor to perform its Work in a diligent manner so as not to interfere with or delay the work of Customer or the work of any other contractor. Company shall pay for all materials/equipment purchased or rented and all labor in a timely manner as dictated by Company’s agreements with its suppliers and subcontractors.

4.2 Storage of Materials; Risk of Loss. Company shall store materials and equipment at the project site only in areas designated by Customer. Materials delivered to and stored at the project site shall be limited to materials required to be incorporated into Work, taking into account any space restrictions at the project site. Such material, once delivered, shall not be removed from the project site, except that any excess materials shall be removed from the project site upon completion of Work. Company will take reasonable measures to protect materials stored at the project site against damage or theft and shall retain all risk of loss or damage to such materials, except to the extent such loss or damage is occasioned by the acts, omissions, negligence or other fault of owner or Customer.

4.3 Lien-Free Project. Provided and to the extent Customer faithfully makes payments to Company of all amounts due in strict accordance with the time periods and other terms and conditions expressed herein, Company shall ensure that the project remains free and clear of claims, encumbrances and liens for labor, services, or materials arising from Company’s performance of the Work.

The Customer shall not issue joint check payments to any subcontractor or supplier of Company except to the extent Company has failed to make undisputed payments to such subcontractor or supplier as required hereunder (following receipt of such payment from Customer). In such event, Customer may, after seven (7) days written notice to Company and opportunity to object, issue a joint check to such subcontractor or supplier and Company. Such joint check shall be deemed a payment to Company hereunder and shall be deducted accordingly from the remaining applicable fees due. A good faith objection by Company on the basis that the payment claim by such subcontractor or supplier is invalid shall preclude the issuance of any joint check pursuant to this Paragraph.

4.4 Responsibility for Work. Company shall secure and protect the Work done hereunder and take all reasonable measures necessary to protect the condition thereof until final acceptance by Customer. In the event of loss or damage to Work caused solely by Company or others under its control, Company shall proceed promptly to repair or replace the damaged work, property or materials at its own expense, and as directed by Customer.

4.5 Worksite Safety. Company shall take all reasonable safety precautions with respect to the Work and shall comply with the Occupational Safety and Health Act of 1970 and all other applicable laws, ordinances, rules, OSHA Standards for the safety of persons or property, and Customer’s Safety Plan, if any, a copy of which must be provided to Company prior to commencement of the Work. Company shall be responsible for the safety of its operations and personnel at the project. Company shall report in writing to Customer, within twenty-four (24) hours of occurrence, any injury to Company’s employees at the project site.

4.6 Removal of Debris. Company shall keep the project site clean of debris arising out of Work, and shall remove all rubbish, debris and surplus which may accumulate from the prosecution of the Work. Should Company fail to do so, then Customer may, following seventy-two (72) hours advance written notice and opportunity to cure, cause the same to be removed and charge the expense of such removal to Company.

4.7 Hazardous Substances. Before using material or substance at the project site considered hazardous under applicable federal, state or local law, regulation or ordinance, Company shall furnish Customer with two (2) sets of the Material Safety Data Sheet for such material or substance and Company shall file a copy of such Material Safety Data Sheet for such material or substance and documentation as may be required by the proper authorities. Company shall notify Customer, all proper authorities, and all subcontractors, suppliers and materialmen in advance of storing or using any hazardous materials on the project site. Company shall label all hazardous materials on the project site and shall be responsible for the proper storage, removal, disposal, application and training of personnel utilizing the hazardous material.

Should Company encounter any pre-existing hazardous materials in the performance of its Work, it will notify Customer and stop Work. Company shall be entitled to an equitable adjustment to the applicable fees and time for completion of the Work to the extent Work is adversely impacted by such encounter. Customer acknowledges that Work does not include removal or handling of any hazardous materials.

TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER SHALL INDEMNIFY AND HOLD HARMLESS COMPANY, ITS SUBCONTRACTORS, AND AGENTS AND EMPLOYEES OF BOTH FROM AND AGAINST CLAIMS, DAMAGES, LOSSES, AND EXPENSES, INCLUDING BUT NOT LIMITED TO ATTORNEY’S FEES, ARISING OUT OF OR RESULTING FROM PERFORMANCE OF THE WORK IN AN AFFECTED AREA IF, IN FACT, THE HAZARDOUS MATERIAL OR SUBSTANCE PRESENTS THE RISK OF BODILY INJURY, SICKNESS, DEATH OR PROPERTY DAMAGES AND HAS NOT BEEN RENDERED HARMLESS.

Section 5.    Payment

5.1        Initial Cash Payment.  Prior to commencement of the Work, Customer shall pay a portion of the cost of Work (“Initial Cash Payment”).  Company may use the Initial Cash Payment in consideration for initial construction or pre-construction expenses, and compensation to Company for time and effort expended.  The Initial Cash Payment shall be retained by the Company as liquidated damages if the Proposal is terminated prior to commencement of the Work for any reason.  Company and Customer agree that it is not possible to calculate the exact amount of damages that Company will suffer if the Proposal is terminated prior to commencement of the Work for any reason and this amount is a reasonable approximation of the damages.  This amount is in no way a penalty. Notwithstanding the forgoing, in the event that Customer pays 100% of  the estimated cost of the Work in a Proposal prior to the commencement of the Work, 10% of such payment shall be retained by the Company as liquidated damages if such Proposal is terminated prior to commencement of the Work for any reason.   

5.2        Applications for Payment.  Unless otherwise expressly specified in the Proposal, on the twenty-fifth (25th) day of each month, Company shall present to Customer an invoice for the Work done since the twenty-fifth (25th) day of the preceding month. Such invoice for payment shall be paid by Customer no later than thirty (30) days following receipt of an invoice.

5.3        Payment for Stored Material.  Payments may be made to Company on account of materials not incorporated in Work but delivered and suitably stored at the project site, or at some other location agreed upon in writing. Payment on account of materials stored shall constitute transfer of ownership to Customer and/or owner.  

5.4        Customer’s Failure to Pay. Customer’s obligation to make timely payments of amounts due as set forth in the Proposal or in these PBC Terms & Conditions is a material term of such agreements. Should Customer fail to timely pay Company in accordance with the agreed upon payment terms, Company may, in addition to any other remedies herein or at law, after five (5) days’ notice, stop or suspend its Work until payment for all outstanding sums is received or terminate the Proposal if payment is not received during the five (5) day notice period. In the event of stoppage or suspension of Work due to Customer’s nonpayment, Company shall be entitled to an extension of time and reimbursement for any demobilization and/or remobilization costs. Any payment to Customer that is not received by the date required herein shall accrue interest at a rate of eighteen percent (18%) per annum of the outstanding balance or the maximum rate allowed by appliable law, whichever is less, from the date such payment is due until the full invoiced amount and accrued interest is fully paid.  In addition, Customer shall be responsible for Company’s costs of collection of any past due amounts, including reasonable attorneys’ fees.  In the event Customer fails to timely pay any monies due and owing to Company, Company may set off, withhold or recoup any payments due under this or any other agreement between the parties.

Section 6.    Changes in the Work

6.1        Company’s Right to Order Changes. Customer, without invalidating the Contract, may order changes in the Work within the general scope of the Proposal consisting of additions, deletions or other revisions, and such changes shall be documented in a written change order agreed to and executed by both Parties. COMPANY WILL NOT BE OBLIGATED TO PERFORM ANY EXTRA WORK WITHOUT A FULLY EXECUTED CHANGE ORDER. Provided, however, in the event Customer issues a verbal/unwritten directive or instruction to Company for the completion of additional or changed work, and to the extent Company performs such work based upon Customer direction despite the lack of an executed Change Order, Company shall be entitled to adjustment of the applicable fees and extension of time for performance as provided in this Section 6.1. For each executed Change Order hereunder, or for verbal/unwritten directives or instructions issued by Customer and completed by Company, the applicable fees and time for performance shall be equitably adjusted accordingly in writing. If the Customer and Company cannot agree to a change in the applicable fees, Customer will pay Company its actual cost for completion of the additional or changed work, plus 20% for overhead and profit.

6.2        Company-Initiated Changes.  Company may submit proposed revisions in Work to Customer in writing but shall not proceed therewith unless and until Customer has approved the proposed change or directed the Company to proceed with the proposed change.

Section 7.    Compliance with Laws

7.1        Compliance with Laws.  Company shall comply with all federal, state and local laws, regulations, rules and ordinances applicable to performance of the Work.  Without limiting the generality of the foregoing, Company shall comply with all (i) OSHA requirements, (ii) equal opportunity requirements, (iii) Social Security, unemployment and workers’ compensation requirements, (iv) environmental requirements and (v) immigration laws. 

7.2        Payment of Taxes. Company shall pay all sales, consumer, use and other similar taxes on materials and equipment supplied, ordered or used in connection with Work.

Section 8.    Insurance and Bonds

8.1        Commercial General Liability Insurance. Company shall maintain commercial general liability (CGL) insurance with a limit of not less than $1,000,000 each occurrence with a $2,000,000 general aggregate.  CGL insurance shall cover liability including, but not limited to, liability arising from premises, operations, independent contractors, products-completed operations, personal and advertising injury, and contractual liability. Company shall maintain CGL insurance as specified in this Paragraph for at least 2 years following final completion of the Work.  To the fullest extent of coverage allowed under Chapter 151 of the Texas Insurance Code, Customer shall be included as an additional insured under the CGL policy to the extent of Company’s negligence or fault, using ISO Additional Insured Endorsements CG 20 10 10 01 and CG 20 37 10 01, or endorsements providing equivalent coverage, including products-completed operations.  This insurance shall apply on a primary and noncontributory basis with respect to any other insurance maintained by Customer.  

8.2        Business Auto Liability Insurance.  Company shall maintain business auto liability insurance with a limit of not less than $1,000,000 each accident.  Such insurance shall cover liability arising out of any auto (including owned, hired, and non-owned autos). Customer shall be named as an additional insured on the business auto policy.

8.3        Workers’ Compensation Insurance.  Company shall maintain workers’ compensation in the statutory required amount and employers liability insurance with employers liability limits not less than $1,000,000 each accident for bodily injury by accident or $1,000,000 each employee for bodily injury by disease.  

8.4        Company Obligation.  The insurance requirements set out in this Section 8 are independent from all other obligations of Company under the Proposal and these PBC Terms & Conditions and apply whether or not required by any other provision.

8.5    Waiver of Subrogation. Customer and Company waive all rights against each other and any of their subcontractors, suppliers, agents and employees, each of the other, for loss or damage to the extent reimbursed by any insurance policy applicable to the Work. If any applicable policies of insurance referred to in this Section require an endorsement or consent of the insurance company to provide for continued coverage where there is a waiver of subrogation, the owners of such policies will cause them to be so endorsed or obtain such consent.

8.6        Occupancy.   Owner will not occupy or use any portion of the project prior to its Substantial Completion, unless mutually agreed to in writing by the Customer and the Company.

 Section 9.    Indemnification

TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY SHALL INDEMNIFY AND HOLD HARMLESS CUSTOMER, AND ITS OFFICERS, DIRECTORS, MANAGERS, MEMBERS, SHAREHOLDERS, AND EMPLOYEES, (THE “CUSTOMER INDEMNITEE”) AGAINST ALL LIABILITY, INCLUDING COSTS, EXPENSES, CLAIMS, LIENS, CITATIONS, PENALTIES, FINES, ATTORNEY’S FEES, LOSSES, AND DAMAGES FOR WHICH A CUSTOMER INDEMNITEE MAY AT ANY TIME BECOME LIABLE AS A RESULT OF OR ARISING OUT OF COMPANY’S PERFORMANCE OF THE WORK AND RELATED TO BODILY INJURY, SICKNESS, DEATH OR  PROPERTY DAMAGE, BUT ONLY TO THE EXTENT SUCH BODILY INJURY, SICKNESS, DEATH OR PROPERTY DAMAGE IS CAUSED BY THE NEGLIGENT ACT OR OMISSION OR FAULT OF COMPANY. 

TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER SHALL INDEMNIFY AND HOLD HARMLESS COMPANY AND ITS SUBCONTRACTORS, AS WELL AS COMPANY’S AND, COMPANY’S SUBCONTRACTORS’ MANAGERS, MEMBERS, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS AND EMPLOYEES (THE “COMPANY INDEMNITEES”) AGAINST ALL LIABILITY, INCLUDING COSTS, EXPENSES, CLAIMS, LIENS, CITATIONS, PENALTIES, FINES, ATTORNEY’S FEES, LOSSES, AND DAMAGES FOR WHICH A COMPANY INDEMNITEE MAY AT ANY TIME BECOME LIABLE AS A RESULT OF OR ARISING OUT OF THIS SERVICES CONTRACT,  BUT ONLY TO THE EXTENT SUCH CLAIM IS CAUSED BY THE NEGLIGENT ACT, OMISSION OR FAULT OF CUSTOMER. 

The obligations of the Company under this Section shall not extend to the liability of Company Indemnitees for damage that is caused by or results from defects in plans, designs, specifications, concealed conditions at the project site, or information prepared, approved, or used by the Customer, owner, architect or engineer or negligence of the Customer, owner, architect or engineer in the rendition or conduct of professional duties called for, or arising out of the Proposal.

Section 10.    Claims and Disputes

10.1         Claims.  All claims between the Parties related to or arising out of the Proposal, these PBC Terms & Conditions or the Work (“Claim”) shall be submitted in writing by the Party making the claim to the other Party within ninety (90) working days after the occurrence of the event giving rise to the Claim.

10.2        Good Faith Negotiations.  Customer and Company agree to first attempt to resolve any dispute through good faith negotiations between the Customer and the Company.

10.3        Arbitration. If a dispute is not resolved per Paragraph 10.2, above, then Company, in its sole discretion, may require the Parties to submit the dispute to binding arbitration by providing the Customer with written notice of arbitration. Company may also elect to bring suit in a court of competent jurisdiction instead of proceeding to arbitration. The failure of Company to so inform Customer of its intent to proceed with arbitration cannot be deemed a waiver of Company’s rights under this Section.

10.3.1    Arbitration shall be administered by the American Arbitration Association, and any and all hearings shall take place in Houston, Harris County, Texas.

10.3.2    The prevailing Party to any arbitration shall be entitled to recover its reasonable attorney’s fees and arbitration costs. The prevailing Party shall be determined by the arbitrator or arbitrators.

10.4        Texas Arbitration Act. The arbitration rights set forth herein shall be specifically enforceable under the Texas Arbitration Act.  

10.5        Venue.  The exclusive venue for any mediation, arbitration or court proceeding relating to Work shall be Houston, Harris County, Texas.  

10.6        Claims for Consequential Damages. Customer and Company waive all Claims for consequential damages arising out of or relating to the Proposal, the Work or the project. This mutual waiver includes damages incurred for rental expenses, loss of use, income, profit (except anticipated profit arising directly from the Work), loss of financing, business, or reputation, loss of productivity, and principle office expenses including the compensation of personnel.

10.7        Cap on Liability. Company’s liability to Customer for damages, loss, expenses or Claims related to the Proposal, the Work or the project shall not exceed the price of the Work to be performed under the Proposal.

Section 11. Default; Termination

11.1 Events of Default. An Event of Default shall occur if Company:

11.1.1. repeatedly refuses or neglects to progress the Work in compliance with the agreed schedule,

11.1.2 fails to promptly pay subcontractors, suppliers, materialmen or laborers all undisputed amounts due, except to the extent such failure is attributable to Customer’s non-payment of amounts due;

11.1.3 persistently disregards laws, ordinances, or rules, regulations or orders of a public authority having jurisdiction; or

11.1.4 is otherwise guilty of breach of a material provision of this Contract.

11.2 Remedies. When any of the above reasons exist, Customer may, without prejudice to any other rights or remedies of Customer and after giving Company fourteen (14) days’ written notice and opportunity to commence a cure, terminate employment of Company and may:

11.2.1 Take possession of the site, but not materials or equipment thereon owned by Company; and

11.2.2 Finish the Work by whatever reasonable method Customer may deem expedient.

If Customer terminates the Proposal for one of the reasons stated in Section 11.1, Company shall be entitled to receive payment for all Work performed prior to the date of termination.

Section 12.    Independent Contractor

The status of Company pursuant to the Proposal is that of an independent contractor, and the Parties hereby signify their express intent to this effect.  Company shall not be controlled by Customer as to the specific details or manner of Company’s business, it being understood that the primary interest of Customer is the result achieved by Company.  Company’s business is separate and apart from that of Customer and it is of the essence of the Proposal that Company is an independent business. Any contrary final determination by any governmental agency or court of competent jurisdiction shall entitle either Party to cancel this Proposal.  Neither Company nor any of its employees, agents, or servants shall be considered or deemed in any way to be employees, agents, or servants of Customer and neither Party has the right nor power, express or implied, to do any act or thing that would bind the other, except as herein specifically provided. The Parties do not intend to act as joint employers, joint venturers, or in any other legal capacity other than separate and distinct businesses acting pursuant to the terms of the Proposal. Furthermore, none of the benefits provided by Customer to its employees is available from Customer to Company or its employees, agents, or servants, except as required by law.  

Section 13.        Attorneys’ Fees and Expenses.

If a dispute arises out of or related to the Proposal, the prevailing party is entitled to recover from the other party, reasonable and necessary attorneys’ fees, court costs, litigation costs, arbitration costs and any other costs arising out of or related to prosecution or defense of a claim under the Proposal.

Section 14.        No Third-Party Beneficiaries.

This Proposal and these PBC Terms & Conditions are solely for the benefit of the signatories hereto.

Section 15.    Savings Clause.

Should any clause in the Proposal or these PBC Terms & Conditions, or a particular application thereof, be held to be invalid or unenforceable, in whole or in part, by any court or arbitration panel, the remaining clauses or other applications herein shall continue in full force and effect.

Section 16.    Entire Agreement.     

These PBC Terms & Conditions and the Proposal constitute the entire agreement between the Parties with respect to the subject matter therein, and it is expressly understood and agreed that there are no other agreements or promises by and between said Parties, except as aforesaid, and that any additions thereto or changes therein shall be in writing and signed by both Parties thereto.

Section 17.    Notices.

All notices required or permitted hereunder shall be made in writing and delivered to the address or transmitted to the email address set forth on the front page of the Proposal, or such other address or number as either Party may designate by like notice.  All notices shall be deemed given when delivered in person, via overnight courier or via email, and three (3) days after deposit in the U.S. mail, certified with postage prepaid.

Section 18.    Waiver.

The waiver by either Party of any breach hereof by the other Party shall not constitute a waiver of any subsequent breach of the same or any other provision.  

Section 19.    Severability.  

The provisions of this Proposal and these PBC Terms & Conditions are severable and if for any reason any provision or provisions herein are determined to be invalid, illegal or unenforceable, such determination shall not affect any other provision hereof.

Section 20.    Applicable Law.

This agreement and the rights of the Parties hereunder shall be governed and construed in accordance with the laws of the State of Texas without giving effect to choice of law principles thereof.

November 8, 2021 version