Terms and Conditions
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
BY SIGNING A STATEMENT OF WORK OR OTHERWISE ENGAGING CONTRACTOR TO PERFORM THE SERVICES, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS.
YOU MAY NOT ENGAGE CONTRACTOR IF YOU (A) DO NOT AGREE TO THESE TERMS AND CONDITIONS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH CONTRACTOR, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
These terms and conditions (the “Terms and Conditions”) apply to the engagement of bathroom floor installation and related services provided by Contractor, whether obtained through kajaconstruction.com (the “Site”), a signed Statement of Work, or any other method of engagement. These Terms and Conditions may be updated by Contractor at any time, in its sole discretion, without prior written notice. The most current version of the Terms and Conditions will be made available on the Site, and Customers are advised to review them prior to purchasing any Products or Services (as defined below) from Contractor. Continued use of the Site following any posted updates to these Terms and Conditions constitutes Customer’s acceptance of those changes
These Terms and Conditions are by and between KAJA CONSTRUCTION LLC, a Michigan limited liability company (the "Contractor") and you, the entity or person purchasing Products or engaging with Contractor to provide the Services (the "Customer").
Customer acknowledges and agrees that these Terms and Conditions are incorporated in, and are a part of, each quotation, purchase order, statement of work, invoice, release, requisition, work order, shipping instruction, specification, and any other document, whether expressed verbally, in written form or electronic commerce, relating to the sale of Products or provision of Services by Contractor to Customer (these documents are collectively referred to as the “Agreement”).
In consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:
1. Definitions.
"Action" has the meaning set forth in Section14.
"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
"Authorized Service Recipients" means the Affiliates of Customer as may be notified by Customer to Contractor from time to time.
"Agreement" has the meaning set forth in the preamble.
"Change Order" has the meaning set forth in Section 6.
“Complete” or “Completion” means the date on which the Services are rendered or Products provided in substantial compliance with the Statement of Work and to the reasonable satisfaction of Customer.
"Confidential Information" means any information that is treated as confidential by a party, including but not limited to all non-public information about its business affairs, products or services, Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether disclosed orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential". Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
"Contractor" has the meaning set forth in the preamble.
"Contractor Personnel" means all employees and Permitted Subcontractors, if any, engaged by Contractor to perform the Services.
"Customer" has the meaning set forth in the preamble.
"Customer Contract Manager" has the meaning set forth in Section 6.
"Customer Equipment" means any equipment, systems, or facilities provided by Customer and used directly or indirectly in the provision of the Services.
"Deliverables" means all Products, documents, work product, and other that are delivered to Customer hereunder or prepared by or on behalf of Contractor in the course of performing the Services, including any items identified as such in the Statement of Work.
"Disclosing Party" means a party that discloses Confidential Information under this Agreement.
"Force Majeure Event" has the meaning set forth inSection 16.
“Homeowner” means the individual or entity identified as the contracting party with legal title to the property where the Services are to be performed. If the property is co-owned, held in trust, or subject to the jurisdiction of a homeowners’ association (HOA), the term “Homeowner” shall include any such individual(s) or entity(ies) who hold(s) or represent(s) a sufficient legal interest or authority to enter into this Agreement and to approve modifications to the scope of work on behalf of all other interested parties. The Contractor shall be entitled to rely on the representations and signature of the Homeowner as conclusive evidence of such authority, without any obligation to independently verify ownership or agency status.
"Intellectual Property Rights" means all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works and rights in data and databases, (d) trade secrets, know-how, and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
"Losses" mean all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
"Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Product(s)” refers to all flooring materials and related items provided or installed by Contractor in connection with bathroom floor installation services. This includes, but is not limited to, tile, vinyl, laminate, grout, underlayment, sealants, and any custom floor patterns or layouts designed or implemented by Contractor.
"Receiving Party" means a party that receives or acquires Confidential Information directly or indirectly under this Agreement.
"Services" mean the services to be provided by Contractor under this Agreement, as described in more detail in the Statement of Work, and Contractor's obligations under this Agreement.
"Statement of Work" or "SOW" means the Statement of Work entered into by the parties via the Estimate Software and incorporated into this Agreement by reference.
“Subcontractor” means any third-party flooring installers, tile specialists, or related contractors, including all subcontractors and affiliates of Contractor, other than Contractor’s employees, who assist in performing any portion of the bathroom floor installation services.
“Substantial Completion” shall mean the stage in the progress of the work when the work, or a designated portion thereof as agreed by the parties, is sufficiently complete in accordance with this Agreement so that the Customer can occupy or utilize the work for its intended purpose, as determined solely by Contractor. Minor punch list items, adjustments, or incomplete components that do not materially impair the use or functionality of the work shall not delay the date of Substantial Completion. The date of Substantial Completion shall be confirmed by Contractor in a written notice to the Customer and shall trigger the commencement of all applicable warranty periods. Any use or occupancy of the work by the Customer or its agents prior to final completion shall be deemed acceptance of Substantial Completion unless otherwise expressly stated in writing by Contractor.
2. Services.
2.1 Provided Services. Contractor shall perform residential remodeling services for Customer, as described in more detail in the Statement of Work. Core services typically include bathroom remodeling, flooring etc. No work shall begin until both parties have reviewed and signed the Statement of Work. Customer acknowledges and agrees that any labor, materials, or services not expressly listed in the Statement of Work shall result in additional charges at Contractor's then-current rates, and such work shall not commence without Customer's written approval of the additional charges. Contractor reserves the right to request a fee adjustment if unforeseen circumstances or material changes to the scope arise during the project. Final Deliverables shall be delivered by Contractor or made available for pickup by Customer, as mutually agreed in writing. Customer shall ensure that the project location is accessible during agreed work hours, from 8:00 AM to 5:00 PM, for the duration of the job. The project schedule is subject to change. Contractor reserves the right to cancel the project prior to commencement in the event of unsafe conditions, non-payment, or other commercially reasonable causes, in which case any deposit paid shall be refunded in full.
2.2 Tools and Equipment. Contractor shall provide all necessary tools and equipment required to complete the Services. While Contractor may, at its discretion, use Customer Equipment on an occasional basis, Contractor is not required to do so. Contractor shall not be held liable for any damage to or malfunction of Customer Equipment used during the course of performing the Services. Customer remains responsible for ensuring that any Customer Equipment is in safe and operable condition.
2.3 Delivery, Pickup, and Related Costs. Customer and Contractor will agree in writing on whether Contractor will deliver any necessary Deliverables to Customer or Customer will pick them up from Contractor’s location. If shipping is requested, Contractor may arrange shipment through a third-party carrier, and any associated shipping fees will be set forth in the Statement of Work or invoiced separately. Pricing remains subject to change based on market factors. Title to the Deliverables passes to Customer upon the earliest of: (i) Customer’s receipt of the Deliverables if delivered by Contractor, (ii) Customer’s pick-up, or (iii) transfer to a carrier, if shipping is arranged. Title transfer is not affected by any delay in payment. Any delivery dates or performance schedules are approximations, and Contractor’s sole obligation is to use commercially reasonable efforts to meet such approximations. If Customer requests an expedited order or rush service, additional fees may apply based on factors such as overtime labor, material availability, and priority scheduling. Contractor will notify Customer of any rush fee before work begins, and payment of such fee is required before priority processing commences.
2.4 Drawing, Specifications, and Illustrative Materials. Prior to the commencement of any work, Customer shall provide accurate drawings, measurements, and specifications, which shall be detailed in a mutually agreed-upon Statement of Work. Contractor shall not be liable for any errors, miscalculations, or structural deficiencies arising from Customer-provided information. The detailed estimate and job scope description shall constitute the definitive and binding representation of the project; any elements not explicitly included therein are excluded and shall not affect the pricing. Contractor may, at its sole discretion, provide floor plans, drawings, or 3D model renderings for conceptual and illustrative purposes only. These materials are not intended to serve as technical specifications. Contractor assumes no responsibility for any reliance on or use of such materials by Customer or any third party not engaged by Contractor, particularly if such materials have been altered or used in derivative form. No license, right of reuse, or commercial exploitation of any such materials is granted without the Contractor’s prior written consent. Contractor may suggest design modifications to enhance functionality or safety; however, such modifications shall not be implemented without Customer’s prior approval.
2.5 Materials Warranties. Materials procured by the Customer should be delivered to the job site before the commencement date. The warranty for materials is provided directly by the manufacturer; Contractor does not offer warranties on materials. The Customer is responsible for verifying material warranties with the manufacturer. Once installed, materials and labor are non-refundable.
2.6 Inspection and Acceptance.
(a) Customer must inspect the completed work within five (5) days of Substantial Completion and must notify Contractor in writing of any defects, nonconformities, or visible damage. Failure to provide such notice within this timeframe shall constitute acceptance of the work as completed. Minor punch-list items that do not materially affect the appearance, performance, or compliance with the Statement of Work shall not delay or preclude final completion.
(b) After acceptance, Customer waives the right to reject the Deliverables or Services performed for cosmetic or minor issues but retains the right to pursue warranty claims for material or workmanship defects. Warranty claims must be made within the warranty period and will be remedied within a commercially reasonable timeframe, subject to material availability.
(c) Contractor reserves the right to repair, replace, or otherwise resolve any installation-related defect. If a valid claim is made regarding a defect in the flooring installation, Contractor will determine the appropriate remedy, such as repairing affected areas, replacing materials, or offering an alternative solution, and will implement it within a reasonable timeframe, taking into account material availability and scheduling constraints.
2.7 Insurance Coverage by Customer. Customer shall, at Customer’s sole expense, maintain and keep in force adequate property insurance with coverage limits of not less than $500,000 per occurrence covering the project premises and all work in progress, including materials and equipment stored on-site or incorporated into the project, for the full replacement value thereof. Such insurance shall provide protection against loss or damage caused by fire, theft, vandalism, water damage, windstorm, explosion, and other customary risks of physical loss during construction. The policy shall name Contractor as an additional insured and loss payee to the extent of its interest in the project. Upon request, Customer shall furnish Contractor with a certificate of insurance evidencing such coverage prior to commencement of any work. Failure to maintain such insurance shall constitute a material breach of this Agreement, and Contractor may suspend work until adequate proof of coverage is provided. Customer assumes all risk of loss or damage to the work, materials, or premises not caused by the negligent or willful acts of Contractor or its agents. Contractor shall not be responsible for any uninsured loss or damage that could have been covered under such policy.
2.8 Quotation. The provided estimate is an approximation based on the expected scope of work. Unforeseen complications may result in deviations from the initial estimate. In such cases, the Customer will be notified immediately regarding any necessary adjustments for additional parts or labor. Written quotations are valid for thirty (30) days from receipt of the Statement of Work, unless otherwise noted in writing by Contractor. Contractor will have the right to withdraw any quote that has not been accepted by Customer within the 30-day time period. If significant increases in material costs exceed ten percent (10%), Contractor reserves the right to adjust the final Fee. In such cases, Customer will be notified before work continues.
2.9 Taxes. Customer shall pay, all taxes and fees of any kind that may be levied or imposed on either party by federal, state, municipal, or other governmental authorities in connection with the sale or delivery of the Products by Contractor with the exception of Contractor’s income tax obligations arising out of the sale of the Products or provision of Services.
2.10 Security Interest. As security for payment of all amounts due to Contractor, Customer grants to Contractor a security interest in all Deliverables provided to Customer by Contractor, and Contractor will have all rights of a secured party under the Uniform Commercial Code with respect to the Deliverables. Customer appoints Contractor as its attorney-in-fact with authority, at Contractor’s option, to take actions as Contractor deems reasonable in the circumstance to perfect the above security interest in any one or more jurisdictions, and Customer shall pay all applicable filing fees.
3. Project Schedule, Delays, and Shortages.
3.1 Estimated Project Duration. The duration of the project will depend on the scope of the project described in the Statement of Work.
3.2 Customer- Caused Delays. If Contractor’s performance is delayed, disrupted, or otherwise impeded due to any act or omission of the Customer, including but not limited to failure to provide timely access to the worksite, delays in making design decisions or approvals, or the unavailability of required selections or materials, Contractor shall be entitled to an extension of the project schedule commensurate with the duration of the delay. In addition, the Customer shall be liable for liquidated damages in the amount of $1,000 per business day, plus any actual costs incurred by Contractor including but not limited to storage fees, rescheduling charges, and increased material costs for each day that Contractor is unable to proceed with its work due to such delay attributable to the Customer.
3.3 Supply Chain Delays and Material Shortages. In the event of delays, disruptions, or increased costs resulting from supply chain issues, labor shortages, material unavailability, transportation constraints, vendor non-performance, or similar commercial difficulties beyond Contractor's reasonable control, Contractor shall be entitled to an equitable adjustment of the project schedule and/or Fee upon written notice to Customer. Such conditions are expressly acknowledged as foreseeable business risks that Contractor has assumed in entering into this Agreement. Accordingly, Contractor remains fully and solely responsible for timely and complete performance of the work, including meeting all project milestones and deadlines, regardless of such circumstances, unless the Customer has expressly agreed in writing to a specific extension or modification of the schedule or scope.
4. Service Location & Safety Regulations.
4.1 Services may be performed at either Contractor’s facility or Customer’s location, as determined by the nature of the Services. Customer shall be responsible for ensuring that the work environment is safe and free of hazards prior to the arrival of Contractor’s personnel. This responsibility includes, but is not limited to, the removal of hazards, obtaining all necessary permits, and ensuring adequate access to the designated work area. Permits are not included in the Services by default; if Customer desires Contractor to obtain and coordinate any required permits, Customer must expressly request such services in advance. All individuals present at the worksite shall comply with all applicable federal, state, and local safety regulations, as well as any additional safety protocols established by Contractor. Customer shall ensure that unauthorized personnel are restricted from entering the designated work zone. Upon Customer’s request, Contractor may furnish barricades or other safety-related materials to assist in restricting access; however, Customer shall remain solely responsible for enforcing such safety measures and for the safety of all persons on-site. Contractor shall not be liable for any personal injury, property damage, or project delays arising from an unsafe work environment attributable to Customer. In the event that Services are delayed due to unsafe site conditions, Contractor may invoice Customer for additional labor charges, rescheduling fees, or other reasonable costs incurred as a result of such delay
4.2 Rules and Regulations. Customer and all on-site personnel must adhere to the following requirements to maintain a safe and compliant work environment:
(a) All personnel present at the worksite must comply with all applicable federal, state, and local safety regulations, as well as any additional safety protocols established by Contractor. Appropriate personal protective equipment (“PPE”), such as gloves, knee pads, safety glasses, and protective footwear, must be worn as required for specific installation tasks. Unauthorized individuals, including untrained personnel, visitors, and minors, are strictly prohibited from entering active work areas. Customer is responsible for ensuring that any individuals they permit on-site comply with this restriction.
(b) Flammable, explosive, or hazardous materials must be properly stored and handled in accordance with OSHA and industry safety standard, which may require specialized services. If hazardous materials are encountered, the Contractor will inform the Customer, and removal will be handled by a licensed professional at additional cost, constituting a Change Order.
(c) All on-site personnel must be familiar with emergency procedures, including fire evacuation routes, first aid locations, and reporting protocols for workplace injuries or safety incidents. Contractor may install barricades, warning signs, or other safety measures to secure the work area, and Customer must not remove or alter these safety measures without Contractor’s prior written approval. Any Subcontractors or third-party workers engaged by either Contractor or Customer must adhere to these rules and regulations, and Customer is responsible for ensuring compliance by any third-party personnel they bring onto the worksite.
(d) Customer is solely responsible for ensuring that the project, including all plans, specifications, and intended use, complies with all applicable local, state, and federal building codes, ordinances, zoning laws, HOA requirements, and other regulatory standards. Contractor shall not be responsible for identifying, correcting, or reporting any code violations or non-compliant conditions that pre-date the commencement of the work, including but not limited to existing plumbing, electrical systems, framing, or structural elements, whether or not such conditions are visible at the time of inspection or construction. Contractor shall not be liable for any delays, costs, penalties, or required modifications arising from pre-existing violations or the Customer’s failure to obtain necessary permits or approvals. To the extent Contractor becomes aware of a potential code issue, it may, but is not required to, notify the Customer. Any corrective work requested by Customer to bring pre-existing conditions into compliance shall require a separate written agreement and may incur additional charges.
(e) Failure to comply with these rules and regulations may result in immediate suspension of Contractor’s performance of the Services, removal of Contractor Personnel from the worksite, or termination of the Services at Contractor’s sole discretion. Any delays or costs incurred due to non-compliance will be Customer’s responsibility. By agreeing to these Terms and Conditions, Customer acknowledges and accepts responsibility for enforcing these rules and ensuring a safe working environment.
5. Contractor's Obligations.
5.1 The Contractor will provide the Services as agreed to in the Statement of Work but is not responsible for noises or compliance issues resulting from existing subfloor or other hidden conditions. Contractor is not responsible for the performance of each Subcontractor and its employees or for their compliance with all of the terms and conditions of this Agreement. Nothing contained in this Agreement shall create any contractual relationship between Customer and any Contractor Subcontractor or supplier. Debris from the project will be placed in an area on the job site as designated by the Customer. The Contractor is not responsible for the removal of waste, old materials, or debris unless a waste removal service (e.g., trailer or dumpster) is arranged through Contractor.
5.2 Contractor and its Subcontractors need to verify certain information prior to accepting to perform the Services. Together with Contractor’s Subcontractors, Contractor and its Subcontractors reserve the right to change, limit, refuse, or cancel any orders by Customer for Products and Services that are sold, at our discretion, without prior notification, and at any time.
6. Customer's Obligations.
6.1 Customer shall:
(a) respond promptly to any Contractor request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Contractor to perform Services in accordance with the requirements of this Agreement;
(b) provide such information as Contractor may reasonably request, in order to carry out the Services, in a timely manner, and ensure that it is complete and accurate in all material respects; and
(c) cooperate with Contractor in all matters relating to the Services and appoint a Customer employee or agent to serve as the primary contact with respect to this Agreement and who will have the authority to act on behalf of Company with respect to matters pertaining to this Agreement (the "Customer Contract Manager").
6.2 If Contractor's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer, any Subcontractor, any Authorized Service Recipient, or their agents, Subcontractors, consultants, or employees outside of Contractor's reasonable control, Contractor shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
7. Change Orders and Excluded Work.
7.1 Change Orders. Either party may request modifications to the scope, schedule, or pricing of the Services by submitting a written request. Upon receipt, Contractor shall evaluate the requested changes and provide a written estimate detailing any proposed adjustments to cost, timeline, or scope. The parties shall then promptly negotiate in good faith, and any agreed-upon changes shall be documented in a written change order executed by both parties (a “Change Order”). No Change Order shall be binding unless mutually agreed to in writing and executed in accordance with Section 17.10. All changes to the original scope of work must be documented in a Change Order signed by the Homeowner. If the property is co-owned or subject to the control of a homeowners’ association (HOA), the Homeowner warrants that they possess full authority to approve changes on behalf of all co-owners or governing entities. Contractor shall be entitled to rely on the Homeowner’s signature as conclusive evidence of such authority and shall have no obligation to verify it. If any requested change results in increased costs or delays, Contractor shall notify Customer in writing. Customer shall be responsible for any additional costs or schedule adjustments expressly approved in a Change Order. In the event that Contractor encounters concealed or unknown site conditions, including but not limited to structural defects, pest infestation, mold, or code violations, which were not reasonably foreseeable at the time of contracting, Contractor shall notify the Customer as soon as practicable. Any additional work required to address such conditions shall be subject to a written change order setting forth the scope and cost of the additional work. Contractor shall not be required to proceed with remediation until the Change Order is executed.
7.2 Excluded Work. The following items are expressly excluded from the Contractor’s scope of work unless otherwise agreed to in writing via a Change Order, and may require separate pricing:
(a) Remediation or repair of hidden or latent site conditions, including, but not limited to, rotten subfloors, mold, mildew, asbestos, or structural deficiencies;
(b) Repair or replacement of fixtures or components delayed or withheld by the Customer; or
(c) Corrections necessitated by environmental conditions that affect material performance, including but not limited to temperature or humidity levels that cause flooring or other materials to warp, swell, or fail to install properly.
8. Termination.
8.1 Right to Cancel or Reschedule; Refund Policy. Contractor reserves the right to cancel or reschedule the project, in whole or in part, at any time and for any reason, including but not limited to scheduling conflicts, site access issues, or safety concerns. In the event of cancellation prior to commencement of work, Customer shall be entitled to a refund of any deposits paid, less any documented costs or non-refundable expenses incurred by Contractor in preparation for the project. If Contractor has commenced work or procured custom or special-order materials prior to cancellation, Customer shall remain responsible for payment of the reasonable value of services rendered and the cost of such materials, which may be deducted from any refund owed as expressed in Section 8.2 of this Agreement. In the case of rescheduling, Contractor shall provide Customer with reasonable notice and will make commercially reasonable efforts to agree on an alternate start date. Contractor shall have no liability for any consequential, indirect, or incidental damages arising from such cancellation or rescheduling. A refund under this Section shall constitute Customer’s sole and exclusive remedy.
8.2 Effects of Termination or Expiration. Upon termination of this Agreement for any reason:
(a) Contractor shall (i) promptly deliver to Customer all Deliverables (whether complete or incomplete) for which Customer has paid, and (ii) on a pro-rata basis, repay all fees and expenses paid in advance for any Services not performed or Deliverables not provided.
(b) Each party shall (i) return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other party's Confidential Information, (ii) permanently delete all of the other party's Confidential Information from its computer systems, and (iii) certify in writing to the other party that it has complied with the requirements of this clause.
(c) In the event there is a request for termination prior to the start of installation, Customer agrees to pay a cancellation charge based on costs incurred plus normal overhead and profit.
8.3 Survival. The rights and obligations of the parties under this Agreement that are intended to survive its termination or expiration, including, without limitation, those relating to payment, warranties, indemnities, limitations of liability, dispute resolution, intellectual property, and confidentiality, will remain in full force and effect notwithstanding any such termination or expiration
9. Pricing, Payment Terms, Remedies.
9.1 Fixed Price Contract. All work performed by Contractor under this Agreement shall be on a fixed-price basis. The agreed-upon contract price shall be the price stated in the Statement of Work (the “Fee”) and shall include all labor, materials, supervision, and related costs necessary to complete the specified the Statement of Work, unless otherwise stated in writing.
9.2 Payment Schedule. Payment for the Fee shall be due in accordance with the following schedule:
(a) Ten percent (10%) of the Fee shall be paid as a non-refundable deposit to secure the job;
(b) Forty-five percent (45%) of the Fee shall be paid on the date work commences at the project site;
(c) The remaining forty-five percent (45%) of the Fee shall be paid upon completion of the project.
9.3 Payment Method and Agreement Execution. The parties agree that all estimates, including the Statement of Work and contractual terms, shall be provided through the Invoice Simple software platform (“Estimate Software”). The Estimate Software shall serve as the medium through which the Customer reviews and executes the Agreement and Statement of Work. Execution of the Agreement shall occur when the Customer signs the electronic estimate via the Invoice Simple link provided. Contractor shall not be required to countersign the estimate for the Agreement to be valid and binding. The signed estimate shall constitute the final agreement between the parties with respect to the work described therein. All payments shall be made in accordance with the terms and schedule set forth in this Agreement or as otherwise provided in the Statement of Work. Customer agrees to remit payment using the method and within the timeframe specified in the estimate delivered through Invoice Simple.
9.4 Failure to Remit Payment. Failure by Customer to remit payment within five (5) calendar days following issuance of a written payment demand may, at Contractor’s sole discretion, result in suspension of Services, withholding of Deliverables, or termination of this Agreement. In the event of termination, both parties shall remain liable for payment of all fees and costs incurred for work performed prior to the effective date of termination. Any deposit paid by Customer shall become non-refundable three (3) calendar days after booking, regardless of subsequent cancellation or termination by either party.
9.5 Taxes. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.
10. Lien Rights and Trust Fund Compliance.
10.1 Authorization to File Liens. To secure payment of all amounts due under this Agreement, the Customer expressly authorizes Contractor to record a construction lien against the subject property in accordance with the Michigan Construction Lien Act (MCL 570.1101 et seq.) without the need for further consent or notice, except as required by law. Contractor shall serve the statutory Notice of Furnishing when applicable.
10.2 Compliance with Michigan Builder’s Trust Fund Act. Contractor shall maintain accurate, project-specific accounting records and deposit funds received for labor, materials, and subcontractor services into designated accounts to ensure compliance with the Michigan Building Contract Fund Act (MCL 570.151–570.153). All such funds shall be applied exclusively to the payment of expenses directly related to the project for which the funds were received.
11. Intellectual Property Rights; Ownership.
11.1 Customer agrees that Contractor and its licensors are, and shall be, the sole and exclusive owners of all right, title, and interest in and to the Deliverables, including all Intellectual Property Rights therein. Customer does not and will not have or acquire any ownership of the Intellectual Property Rights of the Products or Services provided, or any of the Intellectual Property Rights relating to those products or services.
11.2 Contractor and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the pre-existing materials, including all Intellectual Property Rights therein.
11.3 Contractor hereby grants Customer and the Authorized Service Recipients a limited, irrevocable, perpetual, fully paid-up, royalty-free, non-transferable, non-sublicensable, worldwide license to use the Deliverables for its intended purpose.
11.4 All installation methods, techniques, layouts, and materials specifications developed by Contractor in connection with the Services remain the exclusive property of Contractor. Customer may use the installed flooring solely for its intended residential or commercial use. However, Customer may not reproduce, replicate, modify, or create derivative works based on Contractor’s methods, patterns, or installation techniques without Contractor’s prior written consent.
12. Confidential Information.
12.1 The Receiving Party agrees:
(a) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its and its Affiliates, and their officers, employees, consultants, and legal advisors who have a "need to know", who have been apprised of this restriction, and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in thisSection 12;
(b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations under the Agreement or, in the case of Customer, to make use of the Services and Deliverables; and
(c) to promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party.
12.2 If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall provide:
(a) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and
(b) reasonable assistance, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
If, after providing such notice and assistance as required herein, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which, on the advice of the Receiving Party's legal counsel, the Receiving Party is legally required to disclose.
13. Representations and Warranties by Contractor. THIS WARRANTY GIVES CUSTOMER SPECIAL LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
13.1 Expressed Warranties by Contractor.
(a) Workmanship Warranty. Contractor warrants that all services performed under this Agreement shall be executed in a workmanlike manner and shall be free from material defects in workmanship for a period of one (1) year from the date of Substantial Completion, as determined solely by Contractor. This limited warranty applies exclusively to services directly rendered by Contractor and is expressly conditioned upon proper use and maintenance by Customer. The warranty shall be voided in its entirety by any misuse, abuse, neglect, improper maintenance, unauthorized alterations, or repairs performed by third parties or the Customer. Contractor shall have the sole discretion to determine whether a defect exists and whether it falls within the scope of this limited warranty. The Customer’s exclusive remedy for any breach of this warranty shall be limited to the repair or re-performance of the defective workmanship, at Contractor’s sole election. Under no circumstances shall Contractor be liable for consequential, incidental, or special damages arising from or related to any alleged breach of warranty.
(b) Product Warranties. All materials, equipment, and fixtures incorporated into the work shall be subject exclusively to the manufacturer’s warranties, if any. Contractor makes no representations or warranties, express or implied, as to the merchantability, fitness for a particular purpose, or performance of any such products. The Customer acknowledges and agrees that Contractor shall bear no responsibility or liability whatsoever for any defect, failure, or non-performance of third-party products or materials. In the event of product failure, the Customer’s sole and exclusive remedy shall lie directly against the manufacturer, and the Customer shall be responsible for pursuing any warranty claims. Contractor shall not be obligated to assist in enforcing manufacturer warranties unless expressly agreed to in writing and subject to an additional fee.
(c) Third-Party Damage Post-Completion. Following Substantial Completion of the work, Contractor shall have no liability or responsibility for any damage, deterioration, or defect in the work caused by acts or omissions of third parties, including but not limited to other contractors, occupants, maintenance personnel, or service providers, nor by environmental conditions, accidents, vandalism, or improper use. Any post-completion work requested of Contractor to address such damage shall be deemed outside the scope of this Agreement and will only be undertaken pursuant to a new, separately executed agreement or written change order, subject to Contractor’s standard rates and availability. Contractor reserves the right to decline any such requests at its sole discretion.
13.2 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) CONTRACTOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND TITLE.
14. Indemnification. Customer shall defend, indemnify, and hold harmless Contractor, its Affiliates, and their respective officers, directors, employees, agents, subcontractors, successors, and permitted assigns (collectively, the “Contractor Indemnitees”) from and against any and all claims, demands, actions, suits, proceedings, liabilities, damages, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of or resulting from (a) any breach by Customer of its representations, warranties, or obligations under this Agreement; (b) any claim that any design, specification, or other direction provided by Customer infringes or misappropriates any intellectual property right, including without limitation copyrights, trademarks, or design patents; and (c) the performance of the work under this Agreement, including any claims for bodily injury, death, property damage, or any other loss arising out of or resulting from the project governed by this Agreement, except to the extent such claim is attributable to the negligence, gross negligence, or willful misconduct of any Contractor Indemnitee. This indemnification obligation shall survive the termination or expiration of this Agreement.
15. Limitation of Liability.
15.1 TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL CONTRACTOR BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.2 TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL CONTRACTOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TWO TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO CONTRACTOR PURSUANT TO THIS AGREEMENT AND THE APPLICABLE STATEMENT OF WORK.
16. Force Majeure.
16.1 No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including without limitation the following force majeure events ("Force Majeure Events"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) pandemics, epidemics, plagues, infectious disease or viral outbreaks or other public health crisis, including measures of any government authority taken in response to such events such as quarantine or other employee restrictions; and (h) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within ten (10) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue.
17. Miscellaneous.
17.1 Independent Contractor. The relationship between the parties under this Agreement is solely that of independent contractors. Nothing in this Agreement, and no action taken by either party pursuant to this Agreement, shall be deemed to create or imply any partnership, joint venture, agency, fiduciary, or employment relationship between the parties or their respective employees, agents, or representatives. Neither party shall have, nor shall represent that it has, any authority to bind or obligate the other party in any way. Each party shall be solely responsible for the direction, control, and compensation of its employees, agents, and subcontractors. Without limiting the foregoing, each party agrees that it is solely responsible for any subcontractors it engages, and such subcontractors shall also be considered independent contractors. No subcontractor shall be deemed an employee, agent, or representative of the other party, and the engaging party shall ensure that all subcontractors comply with the applicable terms of this Agreement.
17.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by email if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated by the other party.All notices may be sent to Contractor by email at kajaconstruction@gmail.com
17.3 Dispute Resolution and Binding Arbitration.
(a) CUSTOMER AND CONTRACTOR ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT CUSTOMER WOULD HAVE IF CUSTOMER WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND CONTRACTOR ARISING FROM OR RELATED IN ANYWAY TO CUSTOMER’S PURCHASE OF PRODUCTS OR SERVICES, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(b) The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this Section 16.3. (The AAA Rules are available at or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator(s) power to award damages is subject to the limitations set forth in Section 15 of this Agreement.
(c) If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
17.4 Goods Not for Resale or Export. Customer agrees to comply with all applicable laws and regulations of the various states and of the United States. Customer represents and warrants that Customer is buying Products or engaging Services Provider for Services for its own use only, and not for resale or export.
17.5 Assignment. Customer will not assign any of its rights or delegate any of its obligations under these Terms and Conditions without Contractor’s prior written consent. Any purported assignment or delegation in violation of this Section 17.5 is null and void. No assignment or delegation relieves Customer of any of its obligations under these Terms and Conditions.
17.6 No Waivers. The failure by Contractor to enforce any right or provision of these Terms and Conditions will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Contractor.
17.7 No Third-Party Beneficiaries. These Terms and Conditions do not and are not intended to confer any rights or remedies upon any Person other than Customer.
17.8 Entire Agreement. This Agreement, together with all Statements of Work and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
17.9 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
17.10 Modification. This Agreement may be amended, modified, or supplemented only by an agreement in writing signed by each party hereto, provided that Contractor may update its standard Terms and Conditions upon written notice to Customer. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17.11 Severability.If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
17.12 Governing Law. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the State of Michigan, without regard to the conflict of laws provisions of such State.
17.13 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
17.14 Authority. Each signatory represents that it has all requisite authority to execute the Agreement on behalf of its principal and that the Agreement is fully enforceable against the principal in accordance with its terms.
