Terms and Conditions
1. ADVERTISING. Contractor may at any time photograph the residence or otherwise depict the residence for purposes of Contractor’s promotional advertising, without payment to Owner.
2. PAYMENT TERMS. Progress payments are due as noted. Contractor is not providing financing for the Project. This is not a Home Improvement Installment Contract as defined in the Home Improvement Finance Act, MCL 445.1101 et seq., nor a Retail Installment Contract as defined in the Retail Installment Sales Act, MCL 445.851 et seq., nor a “consumer credit agreement” as defined in the Federal Truth in Lending Act, 15 U.S.C.A. 1601 et seq. Complete payment is due upon substantial completion of the Project. Substantial completion means the Project is functional for its designated purpose. If an item is back ordered or for some reason there will be a week or more delay to complete some detail, then an appropriate amount (not more than twice the market value of the incomplete item) may be withheld from the final payment until completion of that item. Special orders must be paid for at the time they are placed. In the event any payment is not made when due, Contractor reserves the right to suspend all work until payment is made. A late charge of 18% per annum, or the highest amount allowed by law, whichever is less, shall be charged on all past due amounts from the date due until paid.
3. AMENDMENTS, ADDITIONS, MODIFICATIONS. All changes in this Agreement shall be in writing, dated, and signed or initialed by all parties to this Agreement. Oral modifications to this Agreement are not enforceable. Any oral statements shall not be relied upon by Owner and shall not become part of this Agreement.
4. CHANGE ORDERS. During construction, changes in the work increasing or decreasing the scope, price, or time for completion of the Project shall be made only by a written document signed by Owner and Contractor. The price adjustment for such changed work shall be determined in advance if possible. Payment for the changed work shall be made before commencement of the changed work.
5. UNFORSEEN CONDITIONS. If conditions are encountered at the building site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated by Owner, or (2) unknown physical conditions of an unusual nature which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the plans, specifications or other documents describing the Project, then Contractor shall notify Owner of such conditions and of the changes to the price, scope or time for completion of the work resulting from such conditions. Owner shall then either execute a change order changing the price, scope, or time for completion or shall direct that the work impacted by the changed or unforeseen conditions be abandoned.
6. CONTRACTOR’S OBLIGATIONS. Contractor shall complete the Project in accordance, and at all times comply, with all laws, statutes, codes, rules, regulations, and ordinances applicable to the Project. If Contractor’s performance of the Project becomes illegal or impossible due to any law or government regulation enacted, or litigation involving the Project and the Owner, Contractor and/or Owner may declare this Agreement void and of no effect, and Owner will promptly pay Contractor any amounts due based on the Project as completed and materials ordered.
Contractor shall be responsible to Owner for the performance of, and Owner will not issue any instructions to or otherwise interfere with, the subcontractors, suppliers, employees, and laborers which Contractor employs, retains, or contracts with for the Project. Owner agrees not to engage subcontractors, suppliers, or laborers, on the Project, without Contractors prior written consent. Contractor shall timely secure and pay for all permits, approvals, notices, tests, inspections, fees, and assessments necessary for the performance of the Project.
7. TIME FOR COMPLETION. The completion time stated in this Contract is merely an approximation and is based on uninterrupted access to the Project during Contractor’s normal working hours. The actual completion time is contingent upon access to the Project, labor strikes, material shortages, accidents, weather, acts of God, changes caused by a body of government, and the like. Contractor shall at all times adequately staff and allocate sufficient labor and materials to the Project to complete the scheduled work and the Project on schedule and by the stated completion date. Change orders will affect the time necessary for completion. Contractor shall not be liable for any damages suffered by Owner as a result of any delay occasioned by these contingencies.
8. OWNER’S COVENANT. Owner, by executing this Agreement, indicates conclusively that all writings to this Agreement are definite in their terms and sufficient to express the intent of the parties with regard to the transaction, the type and amount of work to be done, and the type and quality of the materials to be used. Owner further covenants that Owner has title to the Project property and that all persons who are owners of the Project property are listed as “Owners” and have signed, or will sign, this Agreement.
9. LIMITED WARRANTY. CONSEQUENTIAL AND INCIDENTAL DAMAGES ARE EXCLUDED AND THERE ARE LIMITATIONS IN THE DURATION OF IMPLIED WARRANTIES. Contractor warrants against defective, faulty, or improper workmanship for twelve (12) months from the substantial completion date. Product warranties are solely as stated by the manufacturer and Contractor shall have no liability for any labor or material necessary to repair or replace defective products. Contractor shall not be liable for the labor, materials, acts, or omissions of anyone else. CONTRACTOR’S SOLE LIABILITY PURSUANT TO THIS WARRANTY SHALL BE THE COST OF THE LABOR AND MATERIALS TO REPAIR OR REPLACE, AT CONTRACTOR’S OPTION, ANY DEFECTIVE WORK. CONTRACTOR SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR KIND ARISING FROM
ANY DEFECTIVE WORK, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY WATER, MOLD, INSECT OR ANIMAL INFESTATION, OR DAMAGE BY SOME OTHER AGENT, THAT MAY BE ASSOCIATED WITH DEFECTS IN CONSTRUCTION, PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF INCOME, EMOTIONAL DISTRESS, DEATH, LOSS OF USE, LOSS OF VALUE, ADVERSE HEALTH EFFECTS, OR ANY OTHER EFFECTS. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. GOVERNING LAW, WAIVER, BINDING EFFECT, SEVERABILITY. This Agreement shall be governed by the laws of the State of Michigan. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, personal representatives, successors, and assigns. If any provision shall be construed to be illegal or invalid, it shall not affect the legality or validity of any of the other provisions of this Agreement, and it shall be enforced to the fullest extent permitted.
The failure of Contractor to insist upon the strict performance of any provision of this Agreement or the failure of Contractor to exercise any right, option or remedy shall not be construed as a continuing waiver of any such provision, right, option or remedy or as a waiver of a subsequent breach. The consent or approval by Contractor of any act by Owner requiring Contractor’s consent or approval shall not be construed to waive or render unnecessary the requirement for Contractor’s consent or approval of any subsequent similar act by Owner. No provision of this Agreement shall be deemed to have been waived unless such waiver shall be in writing signed by the party to be charged.
11. DISPUTE RESOLUTION. All disputes arising under this Agreement or among the parties hereto must be submitted to arbitration to be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules (including the Emergency Interim Relief Procedures). Unless otherwise agreed by the parties with respect to disputes submitted to arbitration, the arbitration award will be final and binding on the parties, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. Nothing in this Agreement shall be deemed a waiver of Contractor’s right to record a Claim of Lien under Michigan’s Construction Lien Act. MCLA 570.1101 et seq. If a lien is recorded, the validity of the lien and the determination of the lien amount may be decided by arbitration as set forth above and a judgment of foreclosure based upon the lien may enter against the property in a court of appropriate jurisdiction. All costs and expenses of the arbitration, including actual professional fees, the costs of arbitration proceedings and any ancillary proceedings, and costs for injunctive relief, shall be allocated among the parties at the discretion of the arbitrator(s). The place of arbitration shall be in the State of Michigan at a place convenient to the parties unless the arbitrator(s) designate some other location. The parties irrevocably consent and submit to the personal jurisdiction of any state or federal court having jurisdiction in Kent County, Michigan, with respect to any action or other legal proceeding regarding any dispute that arises under this Agreement.
12. HAZARDOUS ENVIRONMENTAL CONDITION. Contractor makes no representation or warranty as to the presence or lack of asbestos, lead paint, radon, fiberglass or hazardous environmental conditions of any nature or type, or as to the effect of asbestos, lead paint, radon, fiberglass or any such condition on the premises or residents. If such items are discovered and have to be removed, the cost of such removal shall be at Owner’s expense and shall be paid for before commencement of the removal.
13. INSURANCE. Throughout the term of the Project and at Contractor’s expense, Contractor shall maintain commercial general liability insurance with such limits as Contractor may determine are appropriate to the size and value of the Project, and workers’ compensation insurance at statutory limits or waivers covering all individuals or subcontractors who assist in the work. Throughout the term of the Project and at Owner’s expense, Owner shall maintain liability insurance for the benefit of the Owner. Contractor and Owner waive any right of recovery against the other for injury or loss covered by insurance or required to be covered by insurance under this Agreement to the extent of the injury or loss covered by insurance. This waiver shall be binding upon the insurers for both the Contractor and Owner.
14. NOTICE REQUIREMENT. Michigan’s Construction Lien Act, P.A. 1980, No. 497, requires the following to be set forth:
a. That a residential builder or a residential maintenance and alteration contract is required to be licensed under Article 24 of Act 299 of the Public Acts of 1980, as amended, being Sections 339.2401 to 339.2412 of the Michigan Compiled Laws. That an electrician is required to be licensed under Act No. 217 of the Public Acts of 1956, as amended, being Sections 338.881 to 338.892 of the Michigan Compiled Laws. That a plumber is required to be licensed under Act No. 266 of the Public Acts of 1929, as amended, being Section 338.901 to 338.917 of the Michigan Compiled Laws. That a mechanical or heating subcontractor is required to be licensed under Act No. 192 of the Public Acts of 1984, as amended, being Section 338.971 to 338.988 of the Michigan Compiled Laws.
b. The Contractor is licensed as required.
c. The Contractor’s license number is included on the first page of this Agreement.
a. It is understood that the workers on the job will have reasonable use of the Owner’s utilities.
b. It is normal practice for Contractor to order more materials for a job than are actually needed. These leftover materials are the property of Contractor and will be removed from site by Contractor at completion of job.
c. Owner gives Contractor and suppliers permission to drive delivery trucks on the premises and will hold Contractor harmless for driveway and sidewalk cracking or damage. Owner shall be responsible for all landscaping and lawn repair due to construction.
d. Contractor shall be responsible for obtaining any and all permits and inspections necessary to comply with local building codes and the cost of the permits and inspections is included in the contract price. If a special permit or variance is required for the Project, the contract price will be adjusted by change order to reflect Contractor’s additional costs in pursuing the special permit or variance. Contractor makes no representation regarding whether a special permit or variance will be granted for the Project.
e. Performance of the work required to complete the Project may require the materials and services of various subcontractors which are included in the contract price.