The following Terms & Conditions are incorporated into the Proposal (“Contract” unless otherwise indicated) between Ace Door & Window Company, Inc. (CBC1261470) (“Contractor”) and the customer(s) identified in the Proposal (“Customer”):
1. Work, Changes, Extras, Additional Work and Materials, and Contract Price. Contractor shall perform only the work identified in the Proposal. Without invalidating this Contract, Customer may request Contractor to make changes to the work. Contractor shall be under no obligation to perform any changes without Customer’s signature on a written change order and agreeing to the cost thereof. Customer shall pay additional cost resulting from a change order prior to the work being performed unless Contractor agrees otherwise. To the extent that additional work or materials are provided that are not the subject of a signed change order, the Contractor shall be entitled to recover the actual costs thereof, plus 25%. Unless otherwise specified in the Proposal, Customer agrees that the following items are excluded from the Contract price and shall result in additional amounts being owed to Contractor or Customer having to provide and pay for such services: alarm reconnection; stucco removal and replacement; blind removal and replacement; nail filling; permitting, HOA, and architectural review board fees; furniture moving; painting; staining; finish work; existing or unforeseen wood rot; wood replacement; structural damages; and unforeseen or concealed conditions. In the event Contractor’s cost for materials used in performance of this Contract increase by more than 5% over Contractor’s cost for the same materials at the time the Contract was signed, then Contractor shall have the right to pass the entire amount of the material(s) cost(s) increase(s) to Owner.
2. Time for Performance, Waiver, and Indemnification. If Customer causes delays which result in time loss, additional trips, or damages to Contractor, Customer agrees to pay Contractor for such costs/damages. Any lead times provided by Contractor for completion of the work are estimates only. Under no circumstances shall Contractor be liable to Customer for delay or consequential damages. Customer hereby waives any claim for delay or consequential damages against Contractor arising from or relating to the performance or failure to perform under this Contract. Consequential damages may include, but are not limited to, loss of use, loss of income or rent, diminished value, stigma damages, incidental damages, or any other damages constituting consequential damages under Florida law. Customer agrees that certain dangers exist as the result of Contractor performing work under the Contract. Customer therefore agrees that Customer and any other person not performing work under the Contract shall not enter any area in which Customer or other person may be injured or incur damage to property. In the event Customer or other person is injured or incurs damage arising from or relating to Contractor’s performance or failure to perform under the Contract, Customer agrees to have assumed such risk and waive any claims against Contractor. Customer further agrees to the extent permitted by law, to defend, indemnify, and hold harmless Contractor and Contractor’s officers, employees, independent contractors, and subcontractors, from and against all losses, damages, claims, causes of action, expenses, and costs, including but not limited to attorney’s fees, arising from or relating to damages to persons or property caused in whole or in part by any act, omission, or default of Customer or Contractor. Provided, however, this obligation to defend, indemnify, and hold harmless shall not apply to claims, or any loss or damage resulting from willful, wanton or intentional misconduct or gross negligence of Contractor or its officers, directors, agents or employees, or for statutory violations or punitive damages except and to the extent the statutory violation or punitive damages are caused by or result from the acts or omissions of Customer. To the extent § 725.06, Fla. Stat., applies to this provision, the monetary limitation on the extent of the Customer’s duty to indemnify, defend, and hold harmless is limited to $1,000,000.00. Customer and Contractor agree that this monetary limitation bears a reasonable commercial relationship to the Contract and is part of and is hereby incorporated into the project specifications or bid documents, if any.
3. Cancellations. Except as otherwise required by any applicable state, federal, or other law/regulation, this Contract cannot be cancelled after acceptance by Contractor. In the event Customer cancels this Contract after Contractor commences work, Contractor shall be entitled to recover the costs and profits on all work performed and the costs and lost profits on any work that has not been performed. In the event Customer cancels this Contract prior to Contractor commencing its work, Customer agrees that such cancelation is a material breach of this Contract and Customer shall pay Contractor liquidated damages and not as a penalty, twenty percent (25%) of the Contract price. Contractor and Customer agree that Contractor’s resulting damages from Customer’s cancellation of the Contract are not readily ascertainable and the amount of liquidated damages is not grossly disproportionate to Contractor’s actual lost profits.
4. Customer’s Warranty, Responsibility and Risk of Loss. Customer warrants and represents that he/she is the owner or the authorized representative of the owner of the property identified in the Proposal where the work is to be performed and is authorized to contract for the improvements identified therein. Customer warrants that any amounts received from insurance proceeds for work performed by Contractor under this Agreement are trust funds, which Customer, as trustee, shall hold and use solely for the benefit of Contractor. If the work performed by Contractor is being paid for by insurance proceeds, Customer is responsible for paying any deductible and Customer acknowledges that he/she is solely responsible to pay for any amounts owed to Contractor under this Contract regardless of whether such amounts are paid by insurance. Customer shall be responsible for obtaining any required zoning changes, variances, or approval from condominium or homeowner association boards or architectural review committees. All risk of loss to materials and installation after delivery to Customer’s property shall be borne solely by Customer. Customer further agrees to waive any claim against Contractor and its subcontractors and suppliers and to hold them harmless from any damage to or damages resulting from (i) furniture, (ii) blinds, (iii) landscaping, grass, garage doors, the driveway, pavement, or sidewalk (including cracks or broken areas), (iv) movement or vibrations caused by hammering, (v) the utilizing or reinstalling (or the compatibility of) customer supplied locks, knobs, or hardware, (vi) interior drywall or other damage caused by water or moisture during construction or prior to Contractor completing its work, and (vii) any personal property within Customer’s lawn (i.e. gnomes, lights, fountains, toys, patio furniture, pots, plants, etc.).
5. Warranties. Upon payment by Customer of all amounts owed to Contractor, Contractor hereby warrants for a one (1) year period from the date Contractor requests final payment that all labor furnished under the Contract will be of good quality and free from defects, as determined by industry standards. Contractor’s warranty is non-transferable and applies solely to the customer who contracted with Contractor. Contractor has no obligation to perform any warranty work until receiving payment in full. Contractor’s warranty does not cover and specifically excludes any damage or defects caused by abuse or by third persons, corrections or modifications not performed by Contractor, improper or insufficient maintenance, hurricanes, tornadoes, named storm events, or normal wear and tear. In the event Customer requests warranty services which are deemed by Contractor to be items that are not covered by the warranty, Customer agrees to pay a service fee of $125.00 to Contractor. Contractor does not warrant any material. Any material warranty from the manufacturer is solely between Customer and the manufacturer and not Contractor. Contractor shall assist Customer in obtaining the manufacturer’s warranty and if required, shall assign any manufacturer’s warranty to Customer. Contractor has no obligations under the manufacturer’s warranty. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS, AND FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXCLUDED.
6. Controlling Law, Jurisdiction, and Venue. This Contract shall be governed and enforced pursuant to the laws of the State of Florida. In the event of any claim or dispute arising from or relating to this Contract, Customer agrees and consents to personal jurisdiction in the State of Florida. Customer further agrees the sole and exclusive venue for any mediation, arbitration or litigation arising from or relating to this Contract shall be Duval County, Florida, except for lien foreclosure actions, which may be filed in the county where the property is located.
7. Arbitration, Waiver of Jury Trial, Mediation and Written Notice. At the sole and exclusive option of Contractor, any controversy, claim or dispute arising from or relating to this Contract, including its cancellation or termination, shall be resolved by arbitration in accordance with the American Arbitration Association Construction Industry Arbitration Rules. The arbitrator’s award shall be final, and judgment may be entered thereon by any court of competent jurisdiction in accordance with applicable law. The arbitrator is authorized to determine the entitlement to and the amount of attorney’s fees and to award attorney’s fees and costs, including the cost of arbitration and the arbitrator’s fees, to be paid by the non-prevailing party. Contractor and Customer hereby knowingly waive the right to trial by jury. Prior to commencing litigation or at Contractor’s sole option, arbitration, Contractor and Customer shall attempt to resolve any controversy, claim or dispute arising from or relating to this Contract (except for any claim by Contractor for amounts owed under this Contract) through mediation. Contractor’s and Customer’s attempt to mediate all claims or disputes (except for any claim by Contractor for amounts owed under this Contract) shall be a condition precedent to either litigation or arbitration. Any compensation to be paid to the arbitrator or mediator shall be divided between and equally paid by Contractor and Customer. The arbitrator shall include the amount of the prevailing party’s arbitrator fees in the award to the prevailing party. Customer agrees that prior to initiating any claim or mediation against Contractor, including claims for construction defects, Customer shall provide forty-five (45) days written notice and an opportunity to cure to Contractor. Contractor shall have no less than forty-five (45) days to commence curing any alleged defect and has sole discretion to determine who will perform any work to cure or remediate the defect. The written notice and opportunity to cure required by this provision is a condition precedent to Customer’s right to bring any claim or mediation against Contractor.
8. Payment, Interest, Attorney’s Fees, and Costs. Unless otherwise agreed to, the balance of the Contract price owed to Contractor shall be paid on the date of completion of the work as determined by Contractor. All payments not timely received by Contractor shall bear interest at the rate of 1.5% per month. Time is of the essence for all payments required to be made by Customer under this Contract. In the event Contractor retains an attorney to collect any amounts owed under this Contract, regardless of whether Contractor commences litigation or in its sole option arbitration, Contractor shall be entitled to recover from Customer reasonable attorney’s fees and all costs, including attorney’s fees for determining the entitlement to and the amount of such attorney’s fees and costs. In the event of any other controversy, claim or dispute between Contractor or Customer arising from or relating to this Contract, Contractor and Customer shall each bear their own costs and attorney’s fees.
9. Miscellaneous. This Contract represents the entire agreement between Contractor and Customer and supersedes all negotiations, representations or agreements either written or oral. No provision of this Contract may be amended except in writing signed by Contractor. If any portion of this Contract is held to be invalid, illegal, or unenforceable, such portion shall be severed, and the remainder of this Contract shall remain in full force and effect. In the event of any conflict between the Terms and Conditions and the Proposal, the Terms and Conditions shall control. In the event this Contract (or any portion thereof) is determined to be ambiguous, such ambiguity shall not be interpreted in favor of or against any party. All notices shall be addressed to the parties at the addresses set forth in the Proposal and shall be sent by hand delivery, overnight delivery, or certified mail, return receipt requested. The paragraph headings are used solely for the convenience of the parties and shall not be utilized to interpret any provision of this Contract. The Proposal may be signed electronically and in counter parts. Any signed copy of the Proposal forwarded via email or facsimile shall be deemed original for all purposes.