Terms and Conditions

1. As a condition precedent to Helton Creek’s obligations of performance or continued performance hereunder: (a) Client shall notify Helton Creek of the locations of any and all private or public utilities, structures, or materials, including, but not limited to, water, cable, electrical, gas lines, fuel storage, septic systems, underground cables, sprinkler systems, or other concealed and/or hazardous conditions present at, on or in the Property; (b) Client shall, at all times through the Project, make the Property available to Helton Creek, its agents, employees and subcontractors, and shall further, unless otherwise provided for in the Scope of Work, be responsible for or furnish water, electricity and sanitary facilities at the Property for use by Helton Creek, its agents, employees and subcontractors throughout the Project; and (c) The Property shall be ready and prepared for the services of Helton Creek. To that end, Client shall cause to be removed from the work or construction area any furniture, objects, debris, or other impediments. Client shall further provide to Helton Creek sufficient space for the safe, secure, and proper storage of its materials, tools and equipment required for the construction services to be provided hereunder. Helton Creek reserves the right to delay, suspend, or terminate any agreement for services because of any failure on the part of Client with regard to the above subsections or because of any hazardous or concealed condition located upon or adversely impacting the Property. 

2. Helton Creek agrees to maintain a liability insurance policy or builder’s insurance policy for and in conjunction with its services as provided for in the Scope of Work, and shall apply for, obtain, and secure any and all permits (for example, building or electrical permits) if so required for the Project as set forth in the Scope of Work. Client shall apply for, secure, and obtain any and all approvals or other required authorizations, if any, from any homeowner’s association, municipality, or other authorities in which the Project may be located. 

3. Weather permitting, construction shall commence approximately promptly after the issuance of any required permits for or related to the construction services or, if no permits are required, promptly. Helton Creek shall utilize reasonable efforts and work to complete the Project in a timely manner. The Parties acknowledge, however, that any time given or stated for completion is an estimate only and may change subject to, without limitation and by way of example only, change orders and fluctuations and availability of materials, supplies, subcontractors, or laborers. In no event shall Helton Creek be responsible or liable for any differences in the final cost of construction or any costs, expenses, or damages arising from or connected to any delay or failure to meet the above-referenced estimate, including any delays caused by, without limitation: acts or defaults of Client; acts or defaults of any developer or contractor engaged in construction or installation of streets or utilities; adverse weather conditions; damage caused by fire, storm, earthquake, or other casualty; any form of Act of God or unforeseeable event; strike, lockout, or other labor trouble of any kind; governmental controls or procedures, regulations, or moratoria; allocation of labor supplies or material by or under the authority of any governmental agency; acts of suppliers of labor or material; and acts of subcontractors or their employees. Furthermore, Helton Creek shall not be held responsible or liable for any delays, damages, expenses, or other costs associated with any delays or failure to complete construction by any anticipated completion date.

4. Unless otherwise provided for in the Scope of Work, Helton Creek shall have the sole right to select and utilize such subcontractors, laborers, tradesmen, suppliers, and materials as it, in its sole discretion, deems appropriate. Furthermore, unless otherwise agreed to in the Scope of Work, any and all materials, products, fixtures, appliances, and other items to be used in the construction shall be purchased or ordered by Helton Creek; in the event that Helton Creek agrees to install or utilize any appliances or materials provided by Client, Client acknowledges and agrees that the limited warranty set forth in Paragraph 11 of these Terms and Conditions shall not apply to cover such appliances, materials, or any labor connected to the use or installation of such appliances or materials.

5. Client expressly acknowledges that Helton Creek’s right to prompt and full payment is not and shall not be dependent or contingent upon its receipt of funds or moneys from, without limitation, the sale of the Property, insurance proceeds, construction draws or approval from a bank or financing company, or home warranty coverage/reimbursement. 

6. Unless otherwise agreed to in writing, full payment shall be due no later than upon receipt of invoice, which shall be delivered no earlier than the date of completion of the Scope of Work or, in the case of work done under a permit, upon successfully passing the inspection of such work. Interest shall accrue on all unpaid amounts or moneys due from Client to Helton Creek at the rate of one and a half percent (1.5%) per month, and Helton Creek shall be entitled to recover all interest and costs incurred by it in collecting those moneys due from Client pursuant to the any construction agreement, invoice or these Terms and Conditions, including reasonable attorney’s fees, filing fees, and court costs. Furthermore, should Client fail to pay in full any invoice or payment when due as set forth above, Helton Creek may, without limitation and in its sole discretion, continue its services, suspend further construction or services until such invoice is satisfied in full, or cause a Claim of Lien to be placed upon the Property. 

7. The Parties understand and acknowledge that the Project Price and estimated completion schedule for the Scope of Work is based upon an initial evaluation and may be subject to change as required to address undisclosed or unknown conditions with the Property (including unforeseen problems, mold, mildew, rot, asbestos, infestations or pests, hidden damage, or other conditions), which undisclosed or unknown conditions may necessitate additional time, services, and costs (including for materials and labor) that shall be the responsibility and obligation of Client. 

8. Client may order changes in the construction within the general scope of the plans and specifications or materials, consisting of additions, deletions, or other relevant revisions. All such changes shall be made by written change order, to be signed or initialed by the Parties (electronically or otherwise). The cost of all such changes shall be paid by Client at the time of the execution of the change order. 

9. Helton Creek’s construction services shall be performed in a professional and skillful manner and substantially in accordance with any plans and specifications or any change orders subsequently entered into by the Parties. Nevertheless, Helton Creek expressly reserves the right to make changes in the plans and to substitute building materials, appliances, equipment, fixtures and other items in order to avoid construction delays or as may be required by building codes, by the availability of materials, brand names, or by material shortages, strikes, or similar conditions which in Helton Creek’s sole discretion and judgment require, necessitate or prompt such changes; provided only that such changes shall not materially diminish the size, nature, or purpose of the construction and that any such change or substitution shall be of similar quality, as determined by Helton Creek.

10. Helton Creek’s services may be limited by, among other things, the pre-existing conditions and characteristics of the Property, materials, and other items. Helton Creek expressly disclaims any responsibility or liability for any pre-existing conditions, which shall remain the responsibility of Client. Client acknowledges that the materials ordered or indicated to accomplish the construction services or any change orders may be greater than that reflected as necessary according to the workspace measurements, which overage may be retained by Helton Creek if not necessary or used in connection with the Project. Client further acknowledges and agrees that electrical fixtures, tile, marble, granite, stone, cabinets, laminates, paint colors, wallpaper, carpet, vinyl patterns, plumbing fixtures, and other materials and finishes are subject to shading and gradation and may vary from any samples, swatches, images, or depictions viewed or presented. Client further understands and accepts that the color of materials, including fixtures, carpeting, paint, tile, laminates, etc., can vary from shipment to shipment and that Helton Creek is not responsible for any color variation from samples, swatches, images, or depictions viewed or presented. 

11. Except as provided for in Paragraph 4 above, Helton Creek shall provide Client a one-year limited workmanship warranty (“Warranty”), which Warranty shall commence and run one year from the date of the completion of the Project or, if applicable, any final inspection performed in connection with any issued permits, whichever is earlier. Helton Creek’s Warranty responsibilities shall be limited to the repair of any construction determined to be defective and shall not extend to any defects or damages not arising in or during normal use and service. Any repairs undertaken by Helton Creek pursuant to this limited Warranty shall be undertaken in such manner and scope as it deems, in its sole discretion, proper and appropriate. This is the sole warranty provided by Helton Creek. Any and all defects of materials shall lie solely with the manufacturer of such materials, if at all. Client hereby acknowledges having the opportunity to review the Warranty at the time of this Construction Contract. CLIENT HEREBY WAIVES AND DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY LAW, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR HABITABILITY. Client accepts the Warranty described above in lieu of all other warranties and understands that such acceptance is part of the consideration for Helton Creek.

12. These Terms and Conditions shall be binding upon the Parties hereto and their respective heirs, executors, administrators, devisees, representatives, affiliates, successors, and assigns. Save and except for any subsequently executed Change Order, these Terms and Conditions contain the entire understanding of the Parties, and there are no representations, warranties, covenants, or undertakings other than those expressly set forth herein. Contractor reserves the right, at any time and in its sole discretion, to modify the Terms and Conditions without prior notice, and such changes will be effective immediately upon posting. The failure of either Party to insist upon the strict performance of the provisions of these Terms and Conditions shall not be construed as a waiver of any subsequent default of the same or similar nature. 

13. The Parties hereby submit themselves to the jurisdiction of the State Courts of Transylvania County, North Carolina, which shall, unless otherwise mandated by statute, be the exclusive forum for any future action brought by either of the Parties regarding or relating to this Agreement or the performance of either Party. The Parties expressly waive any and all objections to the personal jurisdiction, subject matter jurisdiction and venue of such courts. In addition, these Terms and Conditions shall be construed under and governed by the laws of the State of North Carolina. No provisions shall be interpreted for or against any party because of that Party or the Party’s agent or legal representative drafted the Terms or the particular provision, and the Parties hereby unconditionally waive such defense or claim. This stipulation may be used in court regarding any claims or defenses based on these Terms and Conditions. It is understood and agreed by the Parties hereto that if any part, term or provision of this contract is by the courts held to be illegal or in conflict with the law of North Carolina, the validity of the remaining portions or provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if the contract did not contain the particular part, term, or provision held to be invalid.

14. Any claim by Client for faulty performance, non-performance, or breach shall be made in writing to Helton Creek within ninety (90) days of such alleged non-performance, breach, or completion of the services. Failure to make such a written claim for any matter which could have been corrected by Helton Creek shall be deemed a waiver by Client. NO ACTION, REGARDLESS OF FORM OR BASIS, RELATING TO THE SUBJECT MATTER OF THE CONSTRUCTION CONTRACT MAY BE BROUGHT MORE THAN ONE (1) YEAR FROM THE EARLIER OF ANY ALLEGED BREACH, NON-PERFORMANCE OR WHEN THE CLAIMING PARTY NEW OR SHOULD HAVE KNOWN OF THE CAUSE OF ACTION.

15. If either Party is required to initiate legal proceedings due to a breach of an agreement for services, including these Terms and Conditions, the prevailing Party shall be entitled to recover all costs incurred by it in connection with such proceedings as allowed by law, including, but not limited to, reasonable attorneys’ fees, court costs, and interest. No failure or delay on the part of Helton Creek to exercise any of its rights or the remedies available hereunder and the law of North Carolina shall operate as a waiver thereof. 

16. In no event shall Helton Creek, its members, managers, officers, directors, agents, employees, affiliates, successors or assigns, be liable or responsible for any penalties, indirect, special, nominal, incidental, consequential or punitive damages or losses, regardless of the legal or equitable theory asserted, including claims arising under theories or statutes related to contract, negligence, warranty, or strict liability. Such limitation shall apply for all claims by Client or any third-party. Furthermore, in no event shall Helton Creek’s liability, under any theory of law, exceed the amount paid by or on behalf of Client for the services provided or its actual damages, whichever is less. 

17. By soliciting the service of Helton Creek, Client expressly represents and warrants that it has the authority to do so and to authorize the work or services to be provided hereunder for the benefit or improvement of the Property. Client further consents to Helton Creek’s use, posting, dissemination, or distribution without compensation of any images, depictions, descriptions, or recordings of the conditions it encountered and the services provided by it for any reason, including in its marketing, advertising, social media, or other materials, provided that Client’s name, address and personal image(s) shall not be disclosed or utilized. 

Revision 06282024