TERMS AND CONDITIONS
The following Terms and Conditions apply to all contracts with Lifetime Enclosures, Inc. d/b/a Lifetime Windows.
1. Changes, Extras, Additional Work, and Unforeseen Conditions. Without invalidating this Agreement (“Contract”), Customer may request Lifetime Enclosures, Inc. d/b/a Lifetime Windows (“LEI”) to make changes to the work. LEI shall be under no obligation to make any changes without Customer’s signature on a written change order authorizing the changes and agreeing to the cost thereof. Customer shall pay any additional cost resulting from a change order prior to the work being performed, unless LEI agrees otherwise.
2. Performance and Delays/Consequential Damages. Customer shall provide LEI with reasonable and timely access to perform the work under the Contract. In its sole discretion, LEI shall determine which of its crews or employees will work on any project. If Customer causes delays which result in time loss, additional costs, or damages to LEI, Customer agrees to pay LEI for such costs/damages. Under no circumstances shall LEI be liable to Customer for delay or consequential damages, including but not limited to damages for loss of use or loss of profits. Customer hereby waives any claim for delay or consequential damages against LEI 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, living or rental expenses, finance charges, food or storage costs, increased interest rates, adverse or aggravated medical conditions, diminished value, stigma damages, incidental damages, or other damages constituting consequential damages under Florida law.
3. Cancellations. Except as otherwise required by any applicable state, federal, or other law/regulation, this Contract cannot be cancelled after acceptance by LEI. In the event Customer cancels this Contract, LEI 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. LEI is authorized to deduct such amounts from any deposit paid by Customer.
4. Permits, Associations, and Zoning. LEI shall obtain necessary building permits and will assist Customer in obtaining homeowners association approval. If any additional governmental approvals are necessary (e.g. zoning variances, elevation certificates, etc.), LEI will assist Customer in obtaining such approvals or certificates and Customer shall be responsible for all costs, including any necessary consultant or attorney’s fees, as well as a $350.00 additional administrative fee to be paid to LEI.
5. Customer’s Warranty, Responsibility, Risk of Loss, and Limitation of Liability. Customer warrants and represents that he/she is the owner or the authorized representative of the owner of the property identified on the first page of this Contract and is authorized to contract for the improvements identified herein. All risk of loss to items, materials, and installation, after delivery to Customer’s property shall be borne solely by Customer. Customer further agrees to waive and release any claim against LEI and its designers, subcontractors, and suppliers and to hold them harmless from any damage to or damages resulting from: (i) settling, including settling of concrete slabs or stem walls, (ii) improper soils or subsurface conditions, (iii) the installation of footers or concrete slabs, (iv) work performed by subcontractors or others retained by Customer, including those referred to Customer by LEI or its employees, (v) electrical wires or cables, (vi) plumbing or irrigation pipes, (vii) water intrusion, (viii) cracked or broken tile, (ix) mold, (x) sprinkler heads (xi) sod/grass (xi) landscaping, (xii) driveway, (xiii) personal property, (xiv) stucco cracks, and (xv) settling and/or damaged pavers. Customer acknowledges that plaster or drywall damage may occur when removing a window or door. Additionally, Customer agrees that except for claims resulting from LEI’s gross negligence or intentional conduct, LEI’s liability for any property damage is limited to the contract amount or $10,000.00, whichever is less.
6. Limited Warranty. Upon payment by Customer of all amounts owed to LEI and unless otherwise stated herein, LEI hereby warrants for a two (2) year period from the date of substantial completion that all labor and materials furnished under the Contract will be of good quality and free from defects, as determined by industry standards. Notwithstanding the foregoing, this warranty does not cover the cost of replacing windows or any other item covered by a separate manufacturer’s warranty and such warranties shall be assigned to Customer. LEI’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 LEI, improper or insufficient maintenance, normal wear and tear, acts of God, or extreme weather events. Customer further agrees that: (i) this warranty only applies to products supplied or fabricated and installed by LEI and not to any other structure to which LEI’s work is attached and (ii) this warranty does not cover any water penetrating any portion of a structure/building and entering or effecting LEI’s work. LEI has no obligation to perform any warranty work until receiving payment in full from Customer. “Substantial completion” shall be defined to mean the date when LEI’s work passes inspection or can be used for its intended purpose, whichever is earlier. EXCEPT AS STATED HEREIN, LEI MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXCLUDED.
7. Officer Approval Required. This Contract shall be void and of no effect until signed by a corporate officer of LEI. In the event a corporate officer of LEI elects not to sign this Contract, any deposits paid by Customer shall be returned. No provision of this Contract may be amended or modified except in writing signed by a corporate officer of LEI. Salespersons and representatives who are not a corporate officer of LEI are not authorized to amend or modify this Contract.
8. Consent to Use of Images. Customer hereby consents and provides permission to LEI to use images of LEI’s work and of Customer (including videos and still photographs made by LEI of Customer’s likeness, acts and appearances) for any purpose in connection with promoting LEI and its activities, which includes advertising, promotion, and marketing.
9. 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, relating to, or concerning this Contract, Customer agrees and consents to personal jurisdiction in the State of Florida. Customer further agrees that the sole and exclusive venue for any arbitration or litigation arising from, relating to, or concerning this Contract shall be Duval County, Florida.
10. Arbitration, Waiver of Jury Trial, Mediation and Written Notice. At the sole and exclusive option of LEI, any controversy, claim or dispute arising from or relating to this Contract 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. Third parties may be brought into the arbitration through joined or consolidation. LEI and Customer hereby knowingly and voluntarily waive the right to trial by jury. Prior to commencing litigation or at LEI’s sole option, arbitration, LEI and Customer shall attempt to resolve any controversy, claim or dispute arising from, relating to, or concerning this Contract through mediation. LEI’s and Customer’s attempt to mediate all claims or disputes 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 LEI and Customer. Customer agrees that prior to initiating any claim or mediation against LEI, including claims for construction defects, Customer shall provide thirty (30) days written notice to LEI. The written notice shall specifically identify the alleged claim and provide LEI with at least thirty (30) days to cure same. The written notice and opportunity to cure required by this provision is in addition to any other notice required by Chapter 558, Fla. Stat., and is a condition precedent to Customer’s right to bring any claim or mediation against LEI.
11. Payment, Interest, Attorney’s Fees, and Costs. Unless otherwise agreed to, the balance of the Contract price owed to LEI shall be paid on the date of substantial completion of the work. All payments not timely received by LEI shall bear interest at the rate of 1.5% per month. Time is of the essence for all payments required to be made under this Contract. Customer shall not withhold any amounts from LEI pending completion of warranty, punch list, or repair / remediation work. In the event LEI retains an attorney to collect any amounts owed under this Contract, regardless of whether LEI commences litigation or arbitration, LEI shall be entitled to recover from Customer reasonable attorney’s fees and all costs. In the event of any other controversy, claim, or dispute between LEI and Customer arising from or relating to this Contract, LEI and Customer shall each bear their own costs and attorney’s fees.
12. Inspections. Inspections are coordinated via LEI according to the availability of the building department. Customer may be required to be home on the day of the inspection. If Customer misses a scheduled inspection, Customer agrees to pay any re-inspection fee.
13. Window Treatments, Availability, and Alarm Systems. Customer shall remove all window treatments prior to LEI performing work. If all window treatments are not removed, Customer shall pay Contractor $150 per window for removal. In the event a window or door is not available from the manufacturer due to supply or other issues, the cost of such product shall be refunded to Customer. Customer is responsible for coordinating and paying for the removal and reinstallation of any alarm system or alarm sensor so as to not interfere with LEI’s work.
14. Miscellaneous. This Contract represents the entire agreement between LEI and Customer and supersedes all negotiations, representations or agreements either written or oral. 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 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 on the first page of the Contract and shall be sent by 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.