Comments inserted:
"Carolina Breeze HVAC" wrote
" 3. SHOULD DEFAULT BE MADE IN PAYMENT OF THIS AGREEMENT FOR MORE THAN
FIFTEEN DAYS, A LATE CHARGE EQUAL TO FIVE PERCENT"
5% isnt high. There are contracts here that allow up to 25% of the total
to
be added.
Your contractor isnt a bank, therefore, he wants his money too.
The problem lies with a late charge after 15 days, they already have an
interest clause in the contract.
This next one, would be worthwhile to forward to the State Attorney
General.
They think they're clever by putting the "not as a penalty", where as it
is
a penalty, and not allowed in any state.
Its allowed here...sorry.
Therefore, where do you get off saying its not allowed in any state? If I
go
buy $100,000 of parts and supplies on a contract that was signed by you,
and
you break the contract cause the weather changed, then damn right you are
gonna pay something.
I suggest you read up on penalty clauses, they are not allowed in any state.
By saying it is not a penalty clause, flashes a light at "look at me", I'm
really liquid damages. Sorry, that doesn't hold water in a court. There
should be no mention of penalty what-so-ever.
Your example of "x" amount for parts is totally irrelevant to the paragraph
mentioned. They want 50% down, surely you read the contract.
"11. IF THIS AGREEMENT IS CANCELLED BY THE CUSTOMER, CUSTOMER SHALL PAY
TO
THE COMPANY TWENTY-FIVE PERCENT (25) OF THE TOTAL AGREEMENT AMOUNT AS
LIQUIDATED DAMAGES, NOT AS A PENALTY, AND THE COMPANY AGREES TO ACCEPT
SUCH
AS A REASONABLE AND JUST COMPENSATION FOR SAID CANCELLATION."
So..if the contractor goes out and buys materials that he will be charged
at
least 25% restocking fees on should you cancel, or worse yet, be unable
to
return, you just potentially screwed the hell out of him.
You read the outlined payment schedule, didn't you? What is the problem?
Simply outrageous, put in to leave the owner holding the bag.
"15. DURING THE DURATION OF THE WORK, THE CUSTOMER'S HOMEOWNERS
INSURANCE
WILL BE RESPONSIBLE FOR ANY INTERIOR DAMAGE AS LONG AS THE COMPANY HAS
TAKEN
APPROPRIATE ACTION TO PROTECT THE ROOF DURING THE REPAIR OF THE ROOF."
Nope. Thats called what your homeowners insurance is for. If the roofs
already missing off your home, and the contractor starts work on it, and
you
get another storm, you are going to hold the contractor liable for
anything
that happens after he starts work?
Wrong.
The way I read it is simple:
So long as his company took action to keep rain from entering, be it
tarps,
more plywood laid over etc....and you get another storm, and you get a
leak
that takes out your new $2000 widescreen, hes not gonna pay for it.
Nor should he.
Total hogwash. This type of job can be totally dried-in. Then it becomes
"their word" against "your word". If a company won't stand behind their in
progress work with a minimum of one million liabilty (some areas require up
to triple the amount), their contract isn't worth reading in the first
place.
The customer is supposed to point out wood rot? That's an obligation by
the
construction crew, to notify the consumer of problems. Nail pops can
show
up after the new roof, because the nails weren't driven properly. This
clause is a go-ahead to rip off the consumer.
"17. THE COMPANY IS NOT RESPONSIBLE FOR PRE-EXISTING CONSTRUCTION
DEFICIENCIES THAT MANIFEST THEMSELVES DURING THE CONSTRUCTION PROCESS,
I.E.
NAIL POPS, WOODROT, DECKING DEFLECTION, ETC. IF A CONSTRUCTION PROBLEM
IS
POINTED OUT PRIOR TO CONSTRUCTION AND COMPANY IS NOTIFIED IN WRITING,
COMPANY WILL TRY TO ASSIST CUSTOMER TO CORRECT THE PROBLEM(S) ON A TIME
AND
MATERIAL BASIS."
Here, that would be called a hidden damage clause. Meaning, that if during
the course of the work, any hidden damage is found that was not quoted for
repair due to it not being able to be seen, then the contractor stops and
allows the customer to make up his mind as to what and how to proceed,
after
of course, IF needed requoting.
It should say hidden damage. I suggest you not take anything for granite,
and read what it actually does say. Pay close attention to the part of
"deficiencies that manifest themselves during the construction process".
What that says, if a problem arises regardless of fault, they will not take
on liability, and you will pay.
the consumer is SOL, and they do less than desirable workmanship.
"19. COMPANY ACCEPTS NO LIABILITY TO INDEMNIFY OR HOLD CUSTOMER HARMLESS
FOR
DAMAGES TO PERSONS OR PROPERTY, EXCEPT THOSE THAT ARE THE DIRECT RESULT
OF
COMPANY'S NEGLIGENT ERROR OR OMISSION WHICH OCCUR DURING PERFORMANCE OF
THE
COMPANY'S WORK. COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR DAMAGES TO
PERSONS OR PROPERTY RESULTING FROM MOLD GROWTH WITHIN ANY PART OF THE
BUILDING ENVELOPE DUE TO MOISTURE ENTERING THE BUILDING ENVELOPE PRIOR
TO
COMPANY'S COMPLETION OF INSTALLATION OF THE ROOF SYSTEMS/MEMBRANE,
SIDING,
WINDOW AND GUTTER SYSTEMS OR AS THE RESULT OF DAMAGE TO OR PENETRATION
OF
THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS
BY
OTHERS. CUSTOMER UNDERSTANDS AND AGREES THAT COMPANY SHALL HAVE NO
RESPONSIBILITY AT ANY TIME AFTER COMPLETION OF THE WORK FOR DAMAGES OF
ANY
KIND TO PERSONS OR PROP
ERTY LOCATED BELOW THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW
AND
GUTTER SYSTEMS, WHETHER OR NOT SUCH DAMAGES RESULT FROM (A) LEAKS OR
WEATHER-ORIENTED SOURCES OR (B) MOLD GROWTH."
Thats a lawyers way of inserting a mold protection clause.
Mold is the new asbestoes of the new era, and you will find something like
that on most every contractors forms, unless hes wanting to find that one
person who would go sue for millions over something that was in his house
before, and he just didnt have the circumstances prevaliant for it to
manifest itself.
That's a way to attempt to shrug liabilty issues. I'm afraid case law has
already ruled in favor of the consumer.
What's the potential damage which can occur above
agreement.....priceless.
"20. THE COMPANY'S MONETARY DAMAGE LIABILITY FOR ANY CLAIM OF PROPERTY
DAMAGE
ARISING OUT OF THE COMPANY'S PERFORMANCE OR NON-PERFORMANCE OF THIS
AGREEMENTSHALL NOT EXCEED THE TOTAL AGREEMENT AMOUNT."
And you checked to see if he had insurance right? What that clause is
stating as I read it, as a contractor, that if you sue, and you already
sound like one that would, HIS outlay of liability isnt going to be more
than the amount you agreed to.
His INSURANCE company on the other hand, isnt listed, and THATS what
insurance is for.
Wrong. Contractors are liable, you can not write I am not liable for
damages, and believe you are free and clear of liability issues. If you
don't carry enough insurance, guess what's next?
You're right about one thing, I have sued and won, and won, for clients that
have been taken by disgraceful contractors.
The bottom-line on a contract like this, it would cost a consumer, more for
legal fees, than the fight would be worth.
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