Service Terms
Please read these Service Terms carefully before using the services of Hamilton Homes LLC (“Hamilton Homes”). By
signing a written proposal referencing these Service Terms (“Agreement”), you are accepting the terms and conditions
set forth herein, which are incorporated into and made a part of the Agreement.
1. Services. Hamilton Homes shall provide to the client identified in the Agreement (the “Client”) the services (the
"Services") and work product (“Work Product”) set out in the Agreement. Each Agreement shall be effective only upon
execution by both Parties. The Agreement shall state the scope of work and pertinent parameters for each project
including, but not limited to, pricing, payment, expense reimbursement, and a detailed description of the Services and
Work Product to be provided (each a “Project”). Client, together with Hamilton Homes, shall be referred to herein as the
"Parties", and each a "Party".
2. Fees and Expenses.
2.1 In consideration of the provision of the Services by Hamilton Homes and the rights granted to Client under
the Agreement, Client shall pay the fees set out in the Agreement. Unless otherwise provided in the Agreement, said fees
will be payable within [7] days of receipt by the Client of an invoice from Hamilton Homes. Client shall reimburse Hamilton
Homes for all reasonable expenses incurred in accordance with the Agreement within [7] days of receipt by the Client of
an invoice from Hamilton Homes accompanied by receipts and reasonable supporting documentation.
2.2 Client 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 Client hereunder;
provided, that in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, Hamilton Homes's
income, revenues, gross receipts, personnel, or real or personal property, or other assets. Prices and fees include sales tax
only as specifically noted.
2.3 All late payments shall bear interest at the lesser of (a) the rate of 1.5% per month and (b) the highest rate
permissible under applicable law, calculated daily and compounded monthly and shall be subject to a $25 late fee. All
returned checks will incur a $50 handling charge plus any fees incurred by Hamilton Homes. Hamilton Homes reserves the
right to demand pre-payment of fees prior to performance of Services if Hamilton Homes has reasonable grounds for
insecurity regarding Client’s performance of payment obligations.
2.4 Subject to Hamilton Homes’s receipt of all fees hereunder, all goods furnished by Hamilton Homes to Client
shall be free and clear of any liens or encumbrances.
3. Substantial Completion and Final Completion.
3.1 Hamilton Homes shall provide Client with notice of substantial completion when Hamilton Homes
reasonably determines that the Services have been substantially completed. Within 7 days of such notice, a
representative from Hamilton Homes and the Client shall jointly inspect the work and agree upon those items
to be completed or corrected and include such items on a punch list (the “Punch List”). Only items within
Hamilton Homes’ scope of work pursuant to the Agreement shall be included on the Punch List. Upon Client’s
approval and signature on the Punch List, Hamilton Homes shall use commercially reasonable efforts to
complete all items on the Punch List.
3.2 If (i) a person or company other than Hamilton Homes performs any work on the Punch List or the Project; or
(ii) if Client or any person or company authorized by Client commences to use or occupy the space in which the
Project is located or Hamilton Homes is to perform work on the Punch List, Client agrees to accept all Services
"as is" and waives any claim against Hamilton Homes under the terms of the Agreement, including warranty
claims.
3.3 Upon completion of all items on the Punch List, as determined by Hamilton Homes in its reasonable
discretion, Hamilton Homes shall provide Client with notice of final completion of the Project (the “Final
Completion Notice”). Subject to Section 7, all additional Site visits and any work not included on the original
Punch List shall be considered out of scope of the Project and shall incur additional fees. Following delivery of
the Final Completion Notice, any additional or out of scope work or services provided by Hamilton Homes shall
require a Change Order and shall be (i) compensated in accordance with the pricing and payment terms included
therein; and (ii) scheduled based on Hamilton Homes availability.
4. Changes to the Scope of Work. Changes to the Project (for work in addition to that covered under the fees
as specified in the Agreement) shall be made only by a written change order specifying the changes or additions,
including changes to the applicable fees, if any, and shall not be binding on either party until executed by
Hamilton Homes and Client (each a “Change Order”). The compensation for any Change Order shall be in
accordance with the pricing and payment terms of the Change Order.
5. Suspension of Services. In addition to all other remedies available under the Agreement or at law (which Hamilton
Homes does not waive by the exercise of any rights hereunder), Hamilton Homes shall be entitled to suspend the provision
of any Services if the Client fails to pay any amounts when due hereunder and such failure continues for ten days following
written notice thereof. Client shall maintain safe working conditions at the Client's site where Hamilton Homes is
performing Services (the “Site”), including but not limited to securing pets and animals away from the Site. If,
in Hamilton Homes’s reasonable opinion, the health, safety, or security of Hamilton Homes personnel is, or will
imminently be, imperiled, Hamilton Homes may, in addition to other rights or remedies available to it, evacuate
some or all of its personnel or subcontractors from the Site, and/or suspend performance of all or any part of
the Services. Any such occurrence shall be considered a Force Majeure Event.
6. Inspection. Client shall inspect all Work Product upon delivery or installation, if applicable, and shall provide
notice to Hamilton Homes within 24 hours of completion of delivery or installation of any damage or non-
conformance with the Agreement. Hamilton Homes shall have no responsibility for damages to Work Product
(i) not caused directly by the actions of Hamilton Homes or its subcontractors; or (ii) reported by Client more
than 24 hours after completion of delivery or installation (all such damages, “Excluded Damages”). Hamilton
Homes may elect, in its sole discretion, to repair any Excluded Damages at the rates set forth in the Agreement
or Change Order, or as otherwise agreed by the Parties in writing.
7. Limited Warranty.
7.1 Hamilton Homes warrants that it shall perform the Services in a workmanlike and professional manner and all
Work Product furnished will be free from defects in workmanship (the “Warranty”) for a period of twelve months from
the date of delivery (the “Warranty Period”). Hamilton Homes provides no warranty from defects in materials. Materials
used by Hamilton Homes or its subcontractors shall be warranted only to the extent that the suppliers or manufacturers
of those materials provide a warranty. If Client reports a material defect to Hamilton Homes, Hamilton Homes will use
commercially reasonable efforts to assist Client in enforcing any such manufacturer's warranty. Hamilton Homes will not
be responsible for any costs associated with removal, shipping or installation of the replacement product.
7.2 The Warranty covers only defects in workmanship found in the Work Product under normal use and service
when properly installed and maintained. All aspects of the Warranty are void if a person or company other than Hamilton
Homes performs or re-performs any work or repairs on the Work Product. Additionally, the following are excluded from
the Warranty: (a) movement or misalignment of cabinets due to settling or movement of foundation floors, walls or
ceilings; (b) damage to woodwork, finish, or any defect due to exposure to excessive moisture, heat, humidity, or cold;
and (c) wood movement, raising of grain, or any other problem or defect arising from exposure to moisture at the Client's
Site.
7.3 Hamilton Homes's sole and exclusive liability and Client's sole and exclusive remedy for breach of the
Warranty shall be Hamilton Homes’s prompt correction of such defect in workmanship. The foregoing remedy shall not
be available unless Client provides written notice of such breach within the Warranty Period. Hamilton Homes MAKES NO
WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 7.1. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE
EXPRESSLY DISCLAIMED.
8. Drawings. Hamilton Homes shall own all intellectual property rights associated with drawings, works of authorship
or other design plans developed or created and delivered by Hamilton Homes to Client in the course of performing
Services (the “Drawings”). Client agrees that the Drawings are confidential information of and the sole property of
Hamilton Homes. Hamilton Homes hereby grants to Client a worldwide, perpetual, royalty-free license to use the
Drawings solely as necessary for construction and implementation of the project for which the Drawings were designed;
provided that Hamilton Homes is not responsible for the use or implementation of the Drawings and shall have no
liability to Client or to any third party for any damages arising from use or implementation of the Drawings, except as
may be otherwise agreed in writing by Hamilton Homes. Client shall (i) not use the Drawings, or permit the Drawings to
be accessed or used, for any purpose other than to exercise its rights under the Agreement; and (ii) not disclose the
Drawings to any person or entity, except to the Client’s employees, contractors and representatives who require the
Drawings to assist the Client, or act on its behalf, to exercise its rights under this Agreement.
9. Term, Termination, and Survival.
9.1 The Agreement shall commence as of the earlier of (i) the last date of signature; and (ii) the commencement
of work by Hamilton Homes, and shall continue until the later of (A) full payment by Client of all amounts due under the
Agreement; and (B) delivery of all Work Product or the Final Completion Notice, as applicable (the “Term”), unless sooner
terminated pursuant to Section 9.2 or Section 9.3.
9.2 Either Party may terminate the Agreement, effective upon written notice to the other Party (the "Defaulting
Party"), if the Defaulting Party (a) materially breaches the Agreement, and such breach is incapable of cure, or with respect
to a material breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written
notice of such breach; (b) becomes insolvent, admits its inability to pay its debts generally as they become due or makes
a general assignment for the benefit of creditors; or (c) becomes subject, voluntarily or involuntarily, to any proceeding
under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven days or is not dismissed
or vacated within 45 days after filing.
9.3 Notwithstanding anything to the contrary in Section 9.2(a), Hamilton Homes may terminate the Agreement
before the expiration of the Term on written notice if Client fails to pay any amount when due hereunder and such failure
continues for [ten] days after Client's receipt of written notice of nonpayment.
9.4 Any right or obligation of the Parties in the Agreement which, by its nature, should survive termination or
expiration of the Agreement, will survive any such termination or expiration of the Agreement.
10. Limitation of Liability.
10.1 IN NO EVENT SHALL HAMILTON HOMES BE LIABLE TO CLIENT 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 HAMILTON HOMES HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER
REMEDY OF ITS ESSENTIAL PURPOSE.
10.2 IN NO EVENT SHALL HAMILTON HOMES' AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE
AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR
OTHERWISE, EXCEED [TWO (2)] TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO HAMILTON HOMES PURSUANT
TO THE AGREEMENT.
10.3 Client shall be liable at all times for damages to or destruction of the Site or any equipment or materials
thereon, regardless of how such damage or destruction occurs, including but not limited to damage to paint, wall covering,
floor covering, and ceiling materials. Hamilton Homes shall be under no liability to reimburse Client for any such loss or
damage thereto, except to the extent resulting from the negligent act or omission of Hamilton Homes or any of Hamilton
Homes’s subcontractors or the employees of either.
10.4 Hamilton Homes does not guarantee any schedule or delivery dates. Any time or date stated in the Agreement
or otherwise identified by Hamilton Homes or any of its agents or employees for the performance of Services and delivery
of Work Product is intended as an estimate only. Accordingly, Hamilton Homes shall not be liable for any damages of any
nature whatsoever arising directly or indirectly out of a delay in Services or delivery. Likewise, Hamilton Homes shall not
be liable for delays caused by Client, Client’s personnel or other contractors or Site conditions or changes.
11. Entire Agreement. The Agreement, including and together with any exhibits, schedules, attachments, and
appendices thereto and these Service Terms, constitutes the sole and entire agreement of the Parties with respect to the
subject matter contained therein, and supersedes all prior and contemporaneous understandings, agreements,
representations and warranties, both written and oral, regarding such subject matter, and shall control over any different
or additional terms of any purchase order, acknowledgement or other non-Hamilton Homes ordering document, and no
terms included in any such purchase order, acknowledgement or other non-Hamilton Homes ordering document shall
apply to the Services. The parties acknowledge and agree that if there is any conflict between the terms and conditions of
these Service Terms and the terms and conditions of the Agreement, the terms and conditions of the Agreement shall
supersede and control.
12. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under the Agreement
(each, a "Notice", and with the correlative meaning "Notify") must be in writing and addressed to the other Party at its
address set forth on the Agreement (or to such other address that the receiving Party may designate from time to time in
accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery,
nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage
prepaid). Except as otherwise provided in the Agreement, a Notice is effective only (a) on receipt by the receiving Party;
and (b) if the Party giving the Notice has complied with the requirements of this Section 122.
13. Severability; Amendments; Waiver. If any term or provision of the Agreement is found by a court of competent
jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not
affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any
other jurisdiction. No amendment to or modification of the Agreement is effective unless it is in writing and signed by
each Party. No waiver by any Party of any of the provisions of the Agreement shall be effective unless explicitly set forth
in writing and signed by the Party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, or
delay in exercising, any right, remedy, power, or privilege arising from the 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.
14. Assignment; No Third-Party Beneficiaries. Client shall not assign, transfer, delegate, or subcontract any of its rights
or delegate any of its obligations under the Agreement without the prior written consent of Hamilton Homes. Any
purported assignment or delegation in violation of this Section 14 shall be null and void. No assignment or delegation shall
relieve the Client of any of its obligations under the Agreement. The Agreement is binding on and inures to the benefit of
the Parties and their respective permitted successors and permitted assigns. The Agreement benefits solely the Parties
and their respective permitted successors and assigns and nothing in the Agreement, express or implied, confers on any
other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the
Agreement.
15. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in the
Agreement shall give the Client the right to instruct, supervise, control, or direct the details and manner of the completion
of the Services. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture
or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have
authority to contract for or bind the other Party in any manner whatsoever.
16. Choice of Law. The Agreement is governed by, and construed in accordance with, the laws of the State of Colorado,
United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or
rules would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado.
17. Arbitration. The Parties agree to submit any controversy or claim arising out of or relating to the Agreement, or the
breach thereof, to binding arbitration by National Arbitration and Mediation (“NAM”), or such other dispute resolution
entity upon which the parties may agree, following such arbitration rules as mutually agreed upon by Hamilton Homes
and Client or as specified by the arbitrator. The arbitration shall be governed by the Colorado Uniform Arbitration Act (or
similar successor act or statute) and the rules and procedures of the arbitrator. The number of arbitrators shall be one.
The place of arbitration shall be Denver, CO. Judgment upon the award may be entered by any court having jurisdiction
thereof. The arbitrator shall not be empowered to award damages in excess of actual damages, except that the arbitrator
shall be empowered (but not required) to require any party to pay the reasonable attorney fees, expert witness fees, and
other arbitration costs of any other party. This clause shall not preclude parties from seeking provisional remedies in aid
of arbitration from a court of appropriate jurisdiction.
18. Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or
breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement (except for any
obligations of the Client to make payments to Hamilton Homes 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 Event(s)"): (a) acts of God; (b) flood, fire, earthquake,
epidemic 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 the
Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances;
(h) shortage of adequate materials, power or transportation facilities; and (i) other similar events beyond the reasonable
control of the Impacted Party. Notwithstanding anything to the contrary, the Impacted Party shall not have any liability
for delays resulting directly from governmental actions, significant supply chain shortages, or other consequences
attributable to the widespread impact of the pandemic known as Covid-19.
The Impacted Party shall give notice within [5] days of the Force Majeure Event to the other Party and shall use diligent
efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party
shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the
event that the Impacted Party's failure or delay remains uncured for a period of 30 consecutive days following written
notice given by it under this Section 18, the other Party may thereafter terminate the Agreement upon written notice.