Hello, One of the contractor I am working with for our home remodel has two sections which seems to favor the contractor. How can the below be written so that it protects the owner as well or is the below a standard practise? ACCEPTANCE Acceptance of Contractor’s performance by Owner shall constitute a waiver of any claim for damages on account of any delay. If delay is caused in whole or in part by Owner, Contractor shall be reimbursed for all expenses related thereto, plus a reasonable profit. No penalty or liquidated damages for delay shall be imposed upon Contractor unless specifically provided for herein. WAIVER OF CONSEQUENTIAL DAMAGES Owner waives any claims against Contractor for consequential damages arising out of this Agreement, including, without limitation, damages incurred by the Owner for rental expenses, loss of use, income, or profit. ARBITRATION Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by JAMS under its Arbitration Rules, or by any other arbitrator mutually agreeable to the parties. The parties shall have the right to conduct discovery as provided by the Code of Civil Procedure. Nothing herein shall preclude either party from seeking summary judgment on any cause of action or defense. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. In any action or proceeding to enforce or construe this Agreement, the prevailing party shall be entitled to recover their actual attorneys’ fees and costs. NOTICE: BY INITIALING THIS SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE ‘ARBITRATION OF DISPUTES’ PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OF JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE ‘ARBITRATION OF DISPUTES’ PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE BUSINESS AND PROFESSIONS CODE OR OTHER APPLICABLE LAWS. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
This seems like a contract for a commercial project rather than a residential job. I don’t like the acceptance provision at all and would delete that. Changing the other provisions is more complicated than just answering a simple question, and more facts are needed. I’m happy to discuss this with you.
Cathleen M. Curl, Esq.
Law Office of Cathleen M. Curl
700 El Camino Real, Suite 200
Millbrae, CA 94030