terms

The “Purchase Price” (as stated in EXHIBIT A) is valid for a period of thirty (30) days from the date of this “Proposal” after which time the Purchase Price is subject to revision. The “Scope of Work” to be performed by Louisville Cabinets and Countertops LLC, a Kentucky limited liability company (the “Company”), constituting the “Project” on the “Project Site”, shall be as specifically outlined on EXHIBIT A (and/or as may be contained on any “Work Order”).

“Customer” warrants that he, she or it has legal title to the Project Site and is authorized to be bound by this Proposal. Any one or more owners collectively constituting Customer (i.e., husband and wife) shall be jointly and severally liable for payment thereunder.

Any work requested by Customer that is not specifically covered in the Scope of Work in EXHIBIT A, or discovery of pre-existing conditions that may necessitate repairs and/or remediation, by Code or otherwise, as a consequence of Company’s work on the Project Site, shall be billed by Company to Customer as a Change Order (as hereinafter defined). To further clarify, and not limited to these illustrative examples, Company will not be identifying or repairing deficiencies in Customer’s electrical, plumbing, HVAC or others systems, even if Company is making alterations to such systems. For example, Company may add can lights, move a switch, add a plug, install new faucets or valves pursuant to its Scope of Work as defined in EXHIBIT A, but Company shall not take responsibility for anything other than the Scope of Work as specified. As a further illustrative example, unless specified in the Scope of Work, Company shall not repair waves, cracks or other visible imperfections in drywall, ceiling or plaster. Be further advised, for example, that old or defective items that break during removal or do not work the same once re installed shall not be part of the Scope of Work (for example, old faucet leaks after being reinstalled or the dishwasher or any other appliance no longer works).

Company’s standard terms of payment are as stated on EXHIBIT A. Any payments made by credit card, constituting all or a portion of the Purchase Price, shall increase that portion of the Purchase Price by 3.7%.

Any payments made from an insurance carrier to Company and/or Customer shall be subject to this Proposal.

Company recognizes that time is of the essence in terms of its performance and shall endeavor, acting in a commercially reasonable manner, to meet the Completion Date (as stipulated in EXHIBIT A); subject, however, to Force Majeure.

Unless otherwise stated on EXHIBIT A, Company’s “Design Fee”, shall be included in, and made a part of, the Purchase Price.

Company’s Purchase Price is based upon existing measurements made by Company at the Project Site and/or as otherwise based upon dimensions made and/or supplied by Customer (or as provided in Customer’s plans, specifications, diagrams, etc.). To the extent such measurements are subsequently altered, and/or Company is not timely notified by Customer of any such measurement and/or dimension changes, the cost of any such necessitated re-work of products or materials, as furnished by Company, shall be borne by Customer plus a 20% mark-up.

Company shall have the right to assert and/or enforce any of its statutory lien rights in the event of any non-payment. All past due payments shall bear interest at the rate of 12% per annum. Customer shall reimburse Company for all collection costs including, but not limited to, all legal fees. In the event of any breach, Company specifically reserves all rights and remedies, whether at law or equity, to be cumulatively enforced.

The Purchase Price is based upon: (i) sufficient utilities being connected to Company’s point of use on the Project Site; (ii) all non-hazardous debris generated shall be removed by Company at its expense; and (iii) storage of Company’s materials and equipment shall be in close proximity to Project Site.

At any time commencing upon and/or during Company’s performance of the Scope of Work, Company shall not be responsible or liable, and shall notify Customer in writing, of any unforeseen, non-visible or undetected circumstances and/or conditions, pre-existing or otherwise (including, but not limited to, mold), on or about the specific areas to be renovated, which materially affects the Purchase Price whereby Company may, in its discretion, increase the Purchase Price accordingly pursuant to a Change Order and, furthermore, Customer is obligated to affirmatively negotiate and advocate with its insurance carrier, on Company’s behalf, an equitable adjustment to any direct pay insurance proceeds and/or insurance derived reimbursements to Customer, in either case resulting in an increase in the Purchase Price to be handled as a Change Order.

Unless otherwise stated on EXHIBIT A, the Purchase Price does not include the removal of existing countertops, plumbing/electrical/HVAC disconnects and/or re-connections, and further excludes repairs of existing cabinets or fixtures that are hereby specifically excluded from the Scope of Work.

The Purchase Price does not include the removal, demolition and/or transportation of any lead paint residue, asbestos laden or “hazardous materials” (as specified and/or defined by the EPA, or by any state or local agencies) and, furthermore, the removal, subsequent internment and/or transportation of lead paint residue, asbestos and/or hazardous materials shall be in accordance with all federal, state or local codes and/or ordinances and shall be performed by others at the sole expense of Customer, not by Company. It is Customer’s responsibility to test the Project Site for lead paint residue, asbestos or hazardous materials and to handle such removal prior to the acceptance of this Proposal and/or the Commencement Date of this proposed Project.

The Purchase Price is F.O.B. the Project Site and includes all applicable state or local taxes.

Company expressly reserves the right to correct any material, clerical or stenographic errors contained within this Proposal upon a timely and prompt notification of said error to Customer.

Other than for routine local or state construction permits, the Purchase Price does not include the costs of any special licenses, or for special state or local permits for building, occupancy or otherwise (as such special permits or licenses may be identified by Company). Customer shall assume costs of such special construction licensing, building permits or registrations required by local, state, or federal authorities, if any. To the extent Company is involved, on Customer’s behalf, in assisting in the procurement of any Customer desired special construction licenses or permits (such as, but not limited to, meetings with governmental authorities and/or inspectors), Customer shall reimburse Company for all such costs incurred including, but not limited to, for all administrative time incurred.

Company shall, in its sole discretion, have salvage rights to the removal of furnishings or fixtures from the Project Site, or with respect to any surplus materials brought to the Project Site by Company or any of its subcontractors and/or agents.

Company personnel are fully covered by Workmen’s Compensation and certificates of insurance are available upon request. Company is liable for its own negligence that may arise with respect to property damage it has directly caused, but in no event greater than the applicability and extent of coverage of its commercial property and casualty insurance. Company is liable for personal injury or wrongful death it has directly caused, but only to the applicability and extent of its commercial liability insurance coverage. Company is liable for the negligence of its subcontractors or independent contractors with respect to such authorized work performed by its subcontractors and/or independent contractors directly related to the Scope of Work, but only to the applicability and extent of Company’s commercial liability insurance coverage; provided, however, in no event shall Company be liable for the gross negligence and/or willful misconduct of its subcontractors or independent contractors, or for any of their work or actions not related to the Scope of Work.

Title to all materials and equipment supplied by Company shall remain the property of Company as security for the payment of all sums due under this Proposal. However, any risk of loss or damage to Company’s materials or equipment and/or of its vendors, suppliers and/or subcontractors which has been delivered to and/or stored at the Project Site shall remain that of Customer at all times until the Project has been totally completed and payment in full to Company has been received. Accordingly, Customer shall have builder’s risk insurance and/or home owner’s insurance equal at least to the value of the Purchase Price or any other type of applicable insurance coverage’s. Company’s materials or equipment and/or the materials, or equipment of its vendors, suppliers and/or subcontractors, shall not be removed from the Project Site prior to payment in full of the Purchase Price or otherwise without the express written consent of Company.

Any alteration or deviation from the Scope of Work including, but not limited to, a change in the Purchase Price through “Change Orders”, or any amendments to this Proposal, must be executed in writing and signed and dated by all parties hereto; provided, however, verbal approvals by Customer to proceed, if any, on any additional Scope of Work (and as consented to by Company) shall be legally binding upon Customer.

Destruction, alteration and/or interference of Company’s Scope of Work in any stage of performance, either by Customer, its family members, guests, invitees, agents, representatives and/or pets, whether intentionally or unintentionally, shall subject Customer to a Change Order in order for Company to re-perform the damaged Scope of Work, all at Customer’s sole expense, without otherwise affecting the payment by Customer of the full Purchase Price.

Any Scope of Work requested by Customer to be re-performed for aesthetic reasons shall be subject to Customer paying for such re-work by executing a Change Order, without otherwise affecting the payment by Customer of the full Purchase Price.

Company and/or its subcontractors, agents or representatives does not apply any damp-proofing or water-proofing of any kind on the Project Site. Customer is responsible for making sure any needed sealants are applied by others prior to Company commencing its Scope of Work. Company shall be held harmless for any water damage unless it can be proven beyond a doubt that such water damage was caused by Company and/or by its subcontractors, agents or representatives.

Any Contract entered into shall be contingent upon strikes, accidents, delays, floods, weather storms, utility interruptions, unavailability of materials, civil insurrections or other circumstances beyond Company’s direct control (collectively, “Force Majeure”).

Company is not, and shall not be construed, as an original equipment manufacturer (”OEM”) and, therefore, Company shall not be liable in any manner or to any extent for (i) personal injury, wrongful death or property damage arising out of errors or omissions regarding the designing, engineering, installation and/or use of equipment and/or appliances made by any manufacturer with respect to the Project and/or the installation of any materials supplied by Customer and (ii) for damages caused by malfunctions or manufacturing defects in such vendor and/or Customer supplied equipment, machinery, materials and/or components. Accordingly, any and all claims of performance and/or product liability regarding personal injury, wrongful death or property damage arising out of malfunctions or manufacturing defects in equipment or materials shall be directly between Customer and the OEM and/or the applicable vendor and/or subcontractor, and not between Customer and Company. In no event, even pursuant to a court ruling to the contrary, shall Company ever be liable for such product liability related damages in excess of its commercial liability insurance coverage.

Company expressly warrants its own workmanship for a period of one year from the date of completion in accordance with acceptable kitchen and/or bath construction and/or applicable trade performance standards (with Customer acknowledging that pre-existing conditions, or other parameters and/or commercially practicable limitations, with respect to the construction, may otherwise preclude “perfect results” recognizing that Customer’s existing premises are being renovated, as compared to being brand new construction); provided, however, the installed Scope of Work has not been subjected to any physical, chemical or mechanical abuse or by Force Majeure (as conclusively determined by Company). To the extent, however, any OEM provides any pass-through warranties for less than a full one year period, the OEM warranty to Customer shall be similarly reduced and/or prorated (all such OEM warranties shall be directly between Customer and the OEM and/or the applicable vendor and/or subcontractor, and not between Customer and Company). Otherwise, Company makes no other express or implied warranty as to the fitness or merchantability of installed equipment and components, nor as to the period of service of its products identified above.

The above stated OEM product warranty on major equipment and components will commence upon receipt of final payment with the terms of the warranty being retroactive to the Completion Date of the Project.

In no event shall Company be liable for incidental, consequential, special or punitive damages of any kind or nature in connection with, or arising out of, its performance of the Scope of Work or the furnishing, installation, servicing, use or abuse of any products sold, systems installed or manufactured by it to Customer.

Customer shall cooperate with Company in scheduling and performing the above-identified work agenda and, in addition, schedule other work trades so as not to interfere with any aspects of installation.

In no event shall Company be liable for liquidated damages because of delays arising out of its performance with no penalties, or reduction in Purchase Price, to be enforced against Company.

Company’s limitation of liability for direct damages regarding a breach of contract for its performance shall not, in any event, exceed that portion of the Purchase Price which is directly attributable to Customer’s allegation of Company’s alleged non-performance.

At Company’s discretion, any cancellation of the Project by Customer prior to the Commencement Date, for any reason whatsoever other than for Force Majeure, shall require Customer to forfeit, at a minimum, only that portion of the down payment attributable to the direct costs of non-refundable customized products already custom manufactured and/or fabricated and/or for any and all restocking charges, all as liquidated damages and not as a penalty, plus Customer shall pay one-half of Company’s anticipated profits on the Project. Company reserves the right and option to further assess Customer for any restocking charges for specially ordered equipment, materials or systems, to the extent any such non-recoverable costs should ever exceed the down payment.

As may be itemized on EXHIBIT A, Company may stipulate that certain conditions must exist, and/or certain conditions precedent must be satisfied, prior to Company’s commencement to perform the Scope of Work. To the extent Customer does not comply, Company reserves the right to not to perform the Scope of Work and to unilaterally rescind the Contract; provided, however, Company, as its remedy, shall be entitled to retain Customer’s down payment as liquidated damages and not as a penalty; and provided, further, Company reserves the right and option to further assess Customer for any restocking charges for specially ordered equipment, materials or systems, to the extent any such non-recoverable costs should ever exceed the down payment to the extent applicable.

This Proposal (and any resulting Contract) shall be governed by, and shall be construed and enforced in accordance with, the laws of the Commonwealth of Kentucky if the Project Site is located in Kentucky (or the jurisdiction where the Project Site is located), without giving effect to any conflict of law, rule or principle that might require the application of the laws of another jurisdiction. Notwithstanding the above, any and all disputes under this Proposal (and any resulting Contract) shall be subject to conciliation/arbitration proceedings as mandated by the Building Industry Association of Greater Louisville and, furthermore, Company shall have a right to cure under KRS 411.250-411.266.

This Proposal (and any resulting Contract) merges all prior negotiations between the parties hereto and constitutes their entire understanding with respect to the subject matters herein. It is mutually understood and agreed that all of the terms and conditions of this Proposal (and any resulting Contract) are as set forth herein. No waiver, modification or variation thereof in any particular shall be binding upon any party unless in writing.

In the event any provision of this Proposal (and any resulting Contract) are found to be unenforceable, the remainder of this Proposal (and any resulting Contract) shall be enforceable.

This Proposal (and any resulting Contract) shall be binding upon and shall inure to the benefit of the parties hereto and their respective personal representatives, heirs, successors and assigns.

This Proposal (and any resulting Contract) shall not be assigned by Customer.

On any commercial and/or industrial Contracts whereby Company is a subcontractor and not working directly for an owner as the Customer, it is expressly agreed that all of the terms and conditions of this Proposal shall, in all circumstances, unless otherwise stipulated in EXHIBIT A, govern over and supersede any conflicting terms and conditions or any subcontract or other tiered contract.

Acceptance of this Proposal constitutes a final written expression of all the terms and conditions of this Proposal and is deemed to be a binding “Contract”, comprising the complete and exclusive statement of those terms and conditions.

Pursuant to applicable law, any home improvement contract, such as this Contract, accords Customer the unilateral right to cancel this Contract within 3 business days after its execution for any reason.

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