1. Contract Documents. The Contract Document shall consist of this Contract [referred to as the “Contract Documents”] The intent of the Contract Documents is to include all terms necessary for the proper execution and completion of the work by RefinedHomes. The Contract Documents are complementary so that what is required by one shall be as binding as if required by all provided. Performance by RefinedHomes shall be required only to the extent consistent with the Contract Documents and reasonable inferable from them as being necessary to produce the intended results.
2. Entire Contract. This Contract sets forth the entire Contract and understanding of the parties concerning the subject matter hereof. No representations, promise, inducement or statement of intention, oral written or otherwise, has been made by or on behalf of either party hereto concerning the subject matter hereof, which is not set forth in this Contract. The work shall not include obligations, terms, conditions, representations or warranties as set forth in any other document, information or communications, including, without limitation, brochures, advertisements, descriptions or specifications. This Contract supersedes all prior contracts, arrangements and understanding between the parties related to the subject matter he/*eof. In the event of a conflict between any Contract Documents and this Contract, this Contract shall be superior and shall supersede over all other documents and be deemed controlling. This Contract may not be amended or modified except pursuant to an approved Change of Specification signed by both parties hereto.
3. Change of Specifications. Purchaser may request changes in the work consisting of additions, deletions, or modifications of the Contract Documents only as provided herein. Changes to the work requested by the Purchaser may take place after the execution of the Contract and without invalidating the Contract only by written change orders signed by the Purchaser and RefinedHomes [“Change of Specifications” or “COS”]. RefinedHomes shall not implement or be responsible for change without an approved written COS and payment in full of any prior COS which have been submitted to the Purchaser for payment.
4. Cancellation. In the event that the Purchaser cancels this Contract at any time following expiration of the rescission period, prior to the manufacturing and ordering of the product, it shall be considered a breach and Purchaser agrees to pay RefinedHomes 25% of the contract price upon demand as liquidating damages, and not as a penalty.
5. Materials. RefinedHomes may, in its sole discretion, change or provide substitutes for any materials described or included in the specifications: provided however, any materials so substituted shall either be of substantially equivalent quality as the materials for which they are substituted. Purchaser acknowledges and agrees that any reasonable variances in color, texture or size of certain materials used in construction of the Project or variances from samples shown to and selected by Purchaser shall not constitute a defect in the materials or workmanship.
6. WARRANTIES. THE CONTRACTOR WILL COMPLY WITH ALL REQUIREMENTS FOR BUILDING PERMITS, INSPECTIONS, AND ZONING. THE CONTRACTOR IS NOT RESPONSIBLE FOR CONDITIONS BEYOND ITS CONTROL, INCLUDING BUT NOT LIMITED TO, CONDENSATION WHICH MAY FORM ON OR RESULTING FROM PRE-EXISTING CONDITIONS AND THE PURCHASER’S HOME AND EXTERNAL TEMPERATURES. SOME CONDENSATION MAY ALSO FORM ON THE FRAME OR PORTIONS OF THE ROOF. REDUCING THE HUMIDITY IN THE HOME WILL OFTEN REMEDY AND CONDENSATION PROBLEMS. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OTHER THAN THOSE STATED IN WRITING BY THE MANUFACTURER OF THE GOODS PROVIDED BY THE CONTRACTOR. ENCLOSURES ARE DESIGNED FOR USE AS RECREATIONAL ROOMS, SUNROOMS, FLORIDA ROOMS, ETC. AND CAN BE BUILT TO ACCOMMODATE SPAS AND HOT TUBS, BUT THEY ARE NOT DESIGNED AS A PERMANENT OR YEAR-ROUND LIVING AREA.
7. Force Majeure. RefinedHomes shall be excused form performing any work, obligation or undertakings provided for in this Contract in the event such performance is prevented, delayed, retarded or hindered by a lack of material, purchaser’s act, omission, delay, neglect or by act of God, fire, earthquake, flood, explosion, whether or elements, war invasion, insurrection, riot, mob violence, sabotage, inability to procure or general shortage of labor, equipment, facilities, materials or supplies in the open market, failure of transportation, strike, lockout, government authority, action of labor unions, condemnation, requisition, laws, orders of governments or civil or military authorities, or any other cause, whether similar or dissimilar to the foregoing, including reasonable delays for adjustments of insurance.
8. Cure. In the event that the Purchaser claims any breach of contract, defective, or non-compliance work or breach of any warranty, Purchaser shall give RefinedHomes written notice of any said condition and RefinedHomes shall have 45 days following receipt of said notice to cure any such condition. If the nature of the condition is such that more than 45 days is required for its cure, then RefinedHomes shall be given an additional 30 days to remedy it. RefinedHomes shall remedy, at its costs (a) any defects in workmanship and/or materials cause by RefinedHomes during the period of constructions or (b) any work performed by RefinedHomes which materially differs from the Contract Documents or any controlling laws or building codes during construction.
9. Payment. If Purchaser fails to make payment in full within 5 days after said amount is due and owing as stated in the Contract, RefinedHomes may, without further notice to the Purchaser and without prejudice to any other rights or remedies in this Contract, stop the work until payment of the amount due and owing has been received and the Contract time shall be extended appropriately. Payment shall not be contingent upon any other events or circumstances, including but not limited to work, materials or fixtures suppled by third parties or Purchasers or financing arrangements. Notwithstanding anything contained herein to the contrary, payment by Purchaser to RefinedHomes may be withheld ONLY for defects in workmanship and/or materials caused by RefinedHomes which has not been corrected.
10. Default Rate. If any payment due and payable under this Contract is more than five (5) days late, then any amount due and payable shall bear interest at the rate of eighteen percent (18%) per annum (hereinafter referred to as the “Default Rate”). The Default Rate shall continue in effect until the date on which the amount due under the Contract is paid.
11. Breach by Purchaser. Subject to Paragraph 4, RefinedHomes may terminate the Contract for cause if the Purchaser has not paid RefinedHomes when due for all amounts required under this Contract or any other material breach of this Contract. In such event, the Purchaser shall pay RefinedHomes the balance of the unpaid Contract, without set-off or deduction, plus the Default Rate, which amount shall be due and owing upon demand. In addition, the warranty will be considered null and void.
12. Waiver of Jury Trial. AS A MATERIAL TERM OF THIS CONTRACT, THE PARTIES, JOINTLY AND SEVERALLY, KNOWINGLY, WILLINGLY AND VOLUNTARILY, AND BY THEIR EXPRESS DESIRE AND INTENT, DO EXPRESSLY HEREBY WAIVE A TRAIL BY JURY ON ALL ISSUES, CLAIMS, COUNTERCLAIMS, AND CROSS CLAIMS OR ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT. THE PARTIES HEREBY REPRESENT AND WARRANT THAT NO REPRESENTAIONS OF FACT OR OPNION HAVE BEEN MADE BY ANYONE TO INDUCE THIS WAIVER OF JURY TRAIL OR TO IN ANWAY MODIFY OR NULLIFY ITS EFFECT.
13. Attorney’s Fees. In the event any legal action is taken or brought by RefinedHomes to enforce the provisions of this Contract, Purchaser agrees to pay RefinedHomes all reasonable attorney’s fees, cost, expenses and expert witness fees incurred in enforcing or attempting to enforce any of the terms here of.
14. For Contracts Involving Financing. All financing decisions are made by companies which are not affiliated with RefinedHomes and the source of the credit information is the credit reporting agencies in accordance with the Fair Credit Reporting Act. Purchaser shall use its best efforts to timely apply and secure financing for this Contract and execute all documents reasonably requested and do so in a timely manner.
15. Formal mediation disputes between homeowners and contractors is available through the Commission.
16. The Commission administers the Guaranty Fund, which may compensate homeowners for certain actual losses caused by acts or omissions of licensed contractors.
17. A homeowner may request that a contractor purchase a performance bond for additional protection against losses not covered by the Guaranty Fund.