B. Warranty for Latent Defects Reported After the First Ninety Days But Prior to Expiration Date

Size: px

Start display at page:

Download "B. Warranty for Latent Defects Reported After the First Ninety Days But Prior to Expiration Date"

Brandon Johnston
6 years ago
Views:

1 LIMITED WARRANTY AGREEMENT This limited warranty agreement (this Agreement ) is extended by D3 Design/Build LLC (the Builder ), whose address is PO Box 21144, Seattle, WA 98111, to the original buyer(s) (the Buyer ) of the residential property (the Property ) at the following address: 535 N 72 nd St, Seattle, WA. 1. WHAT IS COVERED BY THE WARRANTY Except as otherwise provided in this agreement, a Defect in the building materials or workmanship is defined exclusively by the standards of construction set out in the 4 th edition of the Residential Construction Performance Guidelines (Consumer Reference), or if the standard is not specified in that publication, as defined by standard industry practice. A. Warranty for Defects Reported During the First Ninety Days The Builder will fix or repair (at Builder s option) any Ordinary Defect or Latent Defect reported by the Buyer to Builder in the manner required by Section 3 within the first ninety days of occupancy by the Buyer (the Ordinary Defect Warranty Expiration Date ). Except in the case of a claim that involves an Emergency Defect, a fix or repair of a Defect reported in compliance with this paragraph will be carried out within a reasonable period of time only after the Ordinary Defect Warranty Expiration Date and only after the Buyer provides the Builder with access to the Property to verify that the complaint involves a Defect. Time is off the essence with respect to reporting a potential Defect under this paragraph. A Latent Defect means only a Defect that is and/or would not be not apparent or ascertainable at the time of occupancy through a reasonably thorough inspection by the Buyer. An Ordinary Defect means only a Defect that is apparent or ascertainable at the time of occupancy through a reasonably thorough inspection by the Buyer. B. Warranty for Latent Defects Reported After the First Ninety Days But Prior to Expiration Date The Builder will fix or repair (at Builder s option) any Latent Defect reported by the Buyer to Builder in the manner required by Section 3 after the first ninety days of occupancy by the Buyer but prior to one year after the earlier of (a) occupancy by the Buyer or (b) closing of the Property (the Latent Defect

2 Warranty Expiration Date ). Except in the case of a claim that involves an Emergency Defect, a fix or repair of a Latent Defect under this paragraph will be carried out within a reasonable period of time only after the Latent Defect Warranty Expiration Date and only after the Buyer provides the Builder with access to the Property to verify that the complaint involves a Latent Defect. The Builder, in its sole discretion, may repair or replace the Latent Defect prior to the Latent Defect Warranty Expiration Date. Time is off the essence with respect to reporting a potential Latent Defect under this paragraph. C. Emergency Defects An Emergency Defect includes any Defect that, if not remedied prior to the Ordinary Defect Warranty Expiration Date, may threaten to (a) make the home unsafe, unsanitary, or unlivable, or (b) cause a material increase in the cost to remedy the Defect. An Emergency Defect also includes a Latent Defect that, if not remedied prior to the Latent Defect Warranty Expiration Date, may threaten to (a) make the home unsafe, unsanitary, or unlivable, or (b) cause a material increase in the cost to remedy the Latent Defect. If the threat from the Emergency Defect is such that it should be remedied within one business day of its discovery, Buyer may, after attempting to contact the Builder in the manner described in Section 3, contract with competent third parties to remedy the Emergency Defect, and the Builder shall reimburse Buyer for commercial reasonable costs directly related to remedying the Emergency Defect; provided, however, that such reimbursement is conditioned upon the Buyer (i) reporting the Emergency Defect within the timelines required by this Agreement, (ii) immediately providing the Builder with all requested documentation to verify the costs and related work, and (iii) immediately providing the Builder (or its agents) with access to the Property for the purpose of determining the claim involves either an Ordinary Defect or a Latent Defect as defined in this Agreement. In all other cases, the Buyer shall provide the Builder with immediate notice of the potential Emergency Defect in writing and by phone in the manner described in Section 4, and the Builder shall inspect the Property, and if the if the Defect is covered by Section 1.A or Section 1.B, perform the repair or replacement obligation under this Agreement within a reasonable time given the nature of the emergency. D. Limited Nature of Warranty; Remedies EXCEPT FOR THE EXPRESS LIMITED WARRANTY SPECIFICALLY DESCRIBED IN THIS AGREEMENT, THE HOME AND PROPERTY ARE BEING SOLD AS IS AND WITH ALL FAULTS AND THE BUILDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE QUALITY, HABITABILITY, MERCHANTABILITY, OR FITNESS OF THE HOME OR PROPERTY BEING SOLD TO BUYER.

3 With respect to any future claim whatsoever that may be asserted by the Buyer against the Builder or the Builder s employees, THE BUYER UNDERSTANDS THAT THE BUYER WILL HAVE NO RIGHT TO RECOVER, OR TO REQUEST COMPENSATION FOR, AND THE BUILDER SHALL NOT BE LIABLE FOR ANY OF THE FOLLOWING: a. INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SECONDARY, OR PUNITIVE DAMAGES b. DAMAGES FOR AGGRAVATION, MENTAL ANGUISH, EMOTIONAL DISTRESS, OR PAIN AND SUFFERING c. ATTORNEY S FEES OR COSTS The sole remedy to the Buyer when a Defect is covered under this Agreement is the repair or replace (which option is chosen in the Builder s sole discretion) of such a Defect, and the Builder shall have no liability if the Buyer elects to pay a third party to repair a Defect either prior to the Builder inspecting the alleged problem to determine if it is a covered Defect or prior to the Builder remedying the Defect within the timeframe required by this Agreement. The Buyer agrees to accept reasonable matches and substitutions in any repair or replacement in the event the specified or originally used item is materially more expensive than when originally installed or is no longer reasonably available. Buyer acknowledges that the purchase price for the Property was negotiated and established by builder in reliance upon the forgoing. (Buyer s Initials) E. Timeliness of Warranty Requests THE BUILDER WILL HAVE NO LIABILITY ARISING OUT OF AND NO OBLIGATION (INCLUDING, WITHOUT LIMITATION, TO REPAIR OR REPLACE) WITH RESPECT TO (I) ORDINARY DEFECTS REPORTED AFTER THE ORDINARY DEFECT WARRANTY EXPIRATION DATE, (II) LATENT DEFECTS REPORTED AFTER THE LATENT DEFECT WARRANTY EXPIRATION DATE, OR (III) ANY DEFECT NOT REPORTED IN COMPLIANCE WITH SECTION WHAT IS NOT COVERED AS A DEFECT Defects do not include, without limitation, any of the following items: A. Damage that does not primarily result directly from a Defect.

4 B. Damage resulting from fires, floods, storms, electrical malfunctions or surges, earthquakes, weather or climate conditions, accidents, or acts of God. C. Damage from alterations, misuse, neglect, or abuse of the covered items by any person. D. Damage resulting from the Buyer s failure to perform reasonable home maintenance. E. Damage resulting from the Buyer s failure to immediately notify the Builder of the condition and/or from the Buyer s failure to take reasonable actions to mitigate any damage. F. Damage resulting from the Buyer s failure to observe any operating instructions furnished by the Builder at the time of installation. G. Damage resulting from an interruption of service or malfunction of equipment or lines of the telephone, cable, gas, power, or water companies. H. Any item furnished or installed by the Buyer. I. Any appliance, piece of equipment, or other item that is a consumer product for the purposes of the Magnuson Moss Warranty Act, 15 United States Code 2301 et seq., installed or included in the Property. Examples of consumer products include, but are not limited to, dishwasher, garbage disposer, gas or electric range, range hood, refrigerator, microwave oven, trash compactor, garage door opener, washer, dryer, water heater, furnace, or heat pump. The only warranties for any appliance, pieces of equipment, or other items considered to be a consumer product for the purpose of the Magnuson Moss Act are those provided by the products manufacturers. a. The Builder has made any manufacturers warranties available to the Buyer for inspection, and the Buyer acknowledges receipt of these warranties, as requested. b. The Builder hereby assigns (to the extent that they are assignable) and conveys to the Buyer all warranties provided to the Builder on any manufactured items that have been installed or included in the Buyer s Property. The Buyer accepts this assignment, agrees to look solely to such manufacturers for claims under such warranties, and acknowledges that the Builder s only responsibility relating to such items is to lend assistance to the Buyer in settling any claim resulting from the installation of these products. 3. HOW TO OBTAIN SERVICE AND CLAIM A WARRANTY ITEM Immediately after discovery, the Buyer must notify the Builder of the potential covered Defect (whether an Ordinary Defect or a Latent Defect) in writing, delivered to the Builder at the address or e mail address specified in Section 4. This written statement of the potential Defect must include the Buyer s name, address, telephone number, e mail address, a description of the nature of the problem, and whether such item may constitute an Emergency Defect (defined below). If the request involves a

5 potential Emergency Defect, the Buyer must also notify the Builder by calling the phone number in Section 4 and either speaking with the Builder or leaving a voice message notifying the Builder of the emergency and providing sufficient information for the Builder to respond appropriately. Repair work will be done during the Builder s normal working hours, except for emergency warranty items where the delay may cause additional damage. The Buyer agrees to provide the Builder or Builder s representative access to the Property for all inspections and repairs. The Buyer also agrees to be present or to have present a responsible adult with authority to authorize the repair and to sign an acceptance of repair ticket upon completion. 4. WHERE TO GET HELP For information concerning this warranty, the Buyer should contact the Builder s customer service representative at: James DeSarno D3 Design/Build LLC PO Box Seattle WA or james@d3seattle.com (206) Any notice or other document required or permitted to be delivered under this Agreement, including written statements of problems, may be sent by first class mail or e mail to the Builder s customer service representative. 5. THE ONLY WARRANTY GIVEN BY THE BUILDER EXCLUSIVE REMEDY (a) The Buyer has thoroughly examined the Property described herein that is to be conveyed, (b) the Buyer has received, has read, and understands this Agreement, and (c) neither the Builder, nor the Builder s representatives, have made any guarantees, warranties, understandings, or representations that are not set forth in this Agreement. The warranty as described in this Agreement constitutes the exclusive remedy of all claims by the Buyer against the Builder or the Builder s employees. THE BUYER SPECIFICALLY WAIVES THE RIGHT TO SEEK DAMAGES OR TO ASSERT ANY CLAIMS AGAINST

6 THE BUILDER OR THE BUILDER S EMPLOYEES, EXCEPT AS MAY BE PROVIDED IN THIS AGREEMENT. 6. DISPUTE RESOLUTION: MEDIATION FIRST, THEN BINDING ARBITRATION A. Mediation Any controversy arising out of the condition of the Property or the interpretation of this Agreement, including, but not limited to, what constitutes a Defect, any claim for damages against the Builder, or any claim of negligence, fraud, breach of express warranty, breach of implied warranty, consumer protection act violations, and breach of contract (collectively, a Dispute ), shall be decided by alternative dispute resolution. The parties agree to initially mediate in good faith and to attempt to achieve resolution of any Dispute. B. Binding Arbitration In the event that the Dispute is not fully resolved in mediation, the Dispute shall then be submitted to binding arbitration. Arbitration shall be conducted before a single arbitrator in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association ( AAA ) that are in effect at the time the arbitration is commenced, although the arbitration need not be conducted under the auspices of AAA. The arbitrator shall employ the standards of construction contained in the 4 th edition of the Residential Construction Performance Guidelines (Consumer Reference) as provided for in this Agreement in determining what constitutes a covered Defect. The arbitrator shall be authorized to order replacement or repair or to award damages; provided, however, that an awarded of damages shall not exceed the cost of replacement and repair. Each party shall be responsible for their own legal expenses and the cost of any expert witnesses, and the arbitrator is prohibited from awarding the prevailing party its attorney fees and costs (unless required by law). The arbitration shall be conducted in King County, Washington. The arbitrator shall apply the laws of the State of Washington, and for claims arising under federal law, shall apply federal law. Without limiting the generality of the foregoing, all state and federal statutes of limitation, statutes of repose, and other limitations of actions which would be applicable in a court action shall apply to the arbitration of claims under this paragraph. The fee for mediation and/or arbitration services shall be divided equally between the Builder and the Buyer; provided, however, that the Builder may cover the cost and fees associated with mediation and/or arbitration in its discretion.

7 7. MISCELLANEOUS ITEMS If any provision of this Agreement is held to be invalid or unenforceable to any extent in any context, it shall nevertheless be enforced to the fullest extent allowed by law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected thereby. The obligations of each party to this Agreement shall inure solely to the benefit of the other party, and no beneficiary or other person or entity shall be a third party beneficiary of this Agreement. The Buyer may not assign any of its rights nor delegate any of its duties in this Agreement. This Agreement may be amended only by a written instrument signed by both parties. This Agreement and the other agreements and documents referenced in this Agreement comprise the entire agreement between the parties with respect to the matters addressed herein. It supersedes and merges within it all prior agreements and understandings between the parties, whether written or oral, express or implied. In interpreting and construing this Agreement, the fact that any particular party may have drafted this Agreement or any provision hereof shall not be given any weight or relevance. This Agreement may be signed in several counterparts, each of which shall be an original, but all of which together shall constitute the same instrument. Copies of signatures (whether electronic or physical) shall have the same force and effect as original signatures. I acknowledge having read, understood, and received a copy of this Agreement and the 4 th edition of the Residential Construction Performance Guidelines (Consumer Reference). (Buyer) Date (Builder) Date

Purchase Agreement TERMS AND CONDITIONS PRICES PAYMENT AND PAYMENT TERMS. Bright Ideas. Better Solutions. Benchmark is Branch Automation.

Purchase Agreement TERMS AND CONDITIONS PRICES PAYMENT AND PAYMENT TERMS. Bright Ideas. Better Solutions. Benchmark is Branch Automation. Purchase Agreement The following terms and conditions shall apply to the sale of goods or products ( goods or products ) associated with your invoice: TERMS AND CONDITIONS The obligations and rights of