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r~. [," '\ 1,: . ~ f'. --:. ~ , ~ ~ ~,,"" PART II " TERMS AND CONDITIONS OF SALE It is further understood and agreed that Ihis Contr~cl is subject to the following conditions which have been mutually agreed upon: 1, Buyer's Age, The Buyer(s) certifies IIlat he is 18 years of age or older, 2, Changes by Manufacturer. In the case of factory orders; If the manufacturer oflhe "property makes or has made design Or specification changes in the model line de' scribed in Part 1, Section C, the Seller may.. but is not obligated to, incqrporate such changes i,n the. property sold" Tpe seller may inc~ease the price of the property by the amount of any increases charged to the Seller by the manufacturer, but the Buyer ihay then elect to cancel the sale unless the Seller agrees to sell at the price stated in Part 1, If the proper- ty as delivered to the Seller from the manufacturer differs III design, COlor, style, constructiori:materials or in other such ways from the description and specifications of the sale, the S~lIer shall have a reasonable time to make the plOperty conform to the description, If the Seller does not make the property so conform the sale wil nevertheless remain binding on the Buyer so long as (a) the property as del.ivered is functionally equivalent or better totllat described and (b) the Buyer cannot clearly demonstrate that the property as delivered materially deviates from the Buyer's esthetic or style preferences as specified in Part 1. 3, Delivery Date Delays, The Seller shall not De liable 101 delays in delivery of the property or any of its accessories or component parts caused by the manufacturer, the car- rier. sureties, accidents. fires or other causes beyond the control ollhe Seller, Failure of the Seller to deliver the property on the anticipated delivery date for any reason shall not be grounds for cancellation 01 the sale, but if it is not deliver,ed by the absolute delivery deadline. THE BUXER SHALL HAVE THE SOLE ELECTION OF WAIVING THE DELIVERY DEADLINE OR CANCELLING THE SALE. Election to cancel must b~ made prior to delivery of the property at the place of delivery shown in Part 1, E, by giving the Seller at least 10 days advance written notice 01 intent to cancel Completion of delivery within 10 days:of said notice is oeemed timely, The Seller shall have an aaditional 20 days after timely delivery and after completion of the Buyer's selllp and check-out obligations to complete set-up of the property, The property will not, under any circumstances, however, be delivered until it has been paid for in full. 1 tIel cfore, any delay in completion of financing and/or payment not caused or contributed to by the fault of the Seller shall correspondingly extend the delivery date and deadline otherwise provided for herein or agreed upon, 4, Exclusion of Warranties NO WARRANTIES, EXPRESSED OR IMPLIED. ARE MADE OR WILL BE DEEMED TO HAVE BEEN MADE BY THE SELLER ON EITHER NEW OR USED UNITS EXCEPT AS FOLLOWS: (a) Manufacturer's Warranty I he seller sha!1 give to the Buyer at the time Buyer completes the final h'ome check-out copies of any and all written warranties covering the within described unit. or any appliance or component tllerein. which have beenprovidoo'by the manufacturer of the unit or appliance or cOll]ponent. respectively, The Seller makes no warranties whatsoever exce~t as set forth III subsection (Rl below The terms of any;nanufacturer's warr~nties are not a part of this agreement and are not adopted by Seller. Buyer understands Seller is not the AgAnt of the m;mufacturer and assumes no responsibility for Manufiiclurers' warranties or obligations under law, (b) Seller's Limited Warranty 1he Seller stlall give to the Buyer at the time Buyersigns this purchase agreement a copy of the Seller's limited warranty for installation ser- vices performed by Seller, Said war ranty is incorpor ated I1erein as if set forth in full. Said warranty, includln!l merchantabUlty and fitness for use or particular purpose, Is the sole warranty. express or implied. provided by the Seller except as otherwise required by law, (c) Consequent/a' Damages. Under no circumstances shaU any warranty arlslnp out of this transacti9n extend to render the Seller liable for any consequential damages or losses for personal Injuries or property damage or loss of use of property, loss of time, 'profits or earnings ullless and to the extent only that the same are covered by liability In- surance In force in favor of the Seller. , ' (d) Model Year and DirilFirJSionS, there is some lack of uniformity and uncertainty amorrg manufact9rers as to the method and criteria designating the model year and measuring the dimensions of manufactured homes Therefor e, those descriptions appearlng on Part 1 hereof ate sometimes arbitrary apprdximallonsbased on information available to the Seller at the time of sale and any deSignation withlnune year of the correct mo'del year or any descripliin,within 4 feetollhe correct length and 3 feet of ihe correct width of measurement of the property shall not be grounds fell a claim for damages or cancellation by the Buyer ': j 5. InsUrance, This agreement does not provide for iiny casualty, liability or life insllfance except as may be specifically stated and included herein, The Seller assumes no responsibility for binding any insurance covArage. " 6, Set-up Responsibilities, Each party has speCific responsibilities tor site preparation, delivery and ~et.up as defined in Part IV, Set-up and Site Requirements Policy, The price quoted for, or including, set'up dnd delivery anticipates normal set-up and delivery'procedures and cosf~ as outlined in Part IV, Any excess time, distance. materials, equip- ment or crew will be charged iiS an extra dnd Will be entimly the responsibility oi the Buyer as stated ther~in, 7, Liquidated Damages The parties recognize that the Seller's damages in case of non-acceptance or r~pudiation by the Buyer are difficult to ascertain and prove and that a measure of damages limited to a "loss of the bargain" concept would be inadequate: Therefore, pursuant to t~e laws of this State in such case the Seiter's measure of damages in- cludes, besides its direct costs and IIlcldentai damages. a "liqUidated damages a"lIowance," which allowance is agreed to.be 20 percent ollhe a~justed sale'price olllle property (item D, 1, Part 1 Earnest Money Agreement, on the face hereof) Further, in such case the Seller shall be entitled to retain such portion of the down payment as equals the total of said damages and/or to sue for deficiency If any . '", 8, Default-Acceleration 01 Payments Time IS 01 the essence of this Agreement, and it is mutually agreed'that in the event the Buyer shall fail to timely comply with any term herein, then the Seller may at its option take legal action to recover anydelinquerii paym@nt or declare all, unpaid balances due and owing and take legal action to recover the same, g, Arbitration of Disputes Disputes ariSing out of tllis Agreemehtare subject to dbmpulsory and binding arbitration in accordance with the following provisions and condi- tions (a) Enforcement. Upon the eleclion and wllttell rJellland byeilher parlY showing the existence of a bona fide controversy and to the full extent permitted by law, arbitration shall be the exclusive plOcedure tor resolving disptlles and shall be a conditiOn precedent to maintaining any sUit. Arbitration shall be commenced and enforced pursuant to and consistent with the proviSions of 15 U,S.C ~ 1 et seq , (b) Scope of ArbItratIon. Arbltrahon shall extend to and the arbitrator shall have ttie power to'decide all matters and issues of fact and/or law including but not limited to the existence of validity of the Agreement as a cantraLl including the issue of fraud. ifl the .inducement, or its cQnstruction, performance or breach. enforceability, operation or duration, The arbitrator shall give full force and effect to all lawful terms of this Agreement whether expressed or implied in fact. The arbitrator shall further have the power to decide the ap- propriate remedies, including damages, restitution, awarding of interesl, costs and reasonable attorneys fees and costs of arbitration, Arbitration shall not be binding on or extend to any lender or any other third party who has acquired rights arising out of any financing or consumer credit contracts and/or security agreements which may be a part of or sup- plement this Agreement. 10. Attorneys' Fees, In the event it becomes necessary for the Seller to retain an attorney to undertake action to induce or enforce performance of obligations of the Buyer aris- ing out of this transaction, then the Buyer shall be responsible for paying the Seller's reasonable costs, as hereinafter defined, of inducing or enforcing the Buyer's obligations, In the event it becomes necessary for Seller to retain an attorney to defend a~y action brought by the Buyer arising out of this transaction, then the Buyer shall be responsible for pay- ing the Seller's costs, as hereinafter defined, but only to the extent the Seller is the prevailing party in such action, The Seller shall be considered the prevailing party if the Buyer fails to obtain a judgment in excess of any good faith written settlement offer made by Seller, Any such settlement offer shall not be admissible into evidence except after trial for the purpose of determining whether Seller is tne prevailing party, Seller's costs shall include without limitation, reasonable attorneys fees, reasonable fees of experts and other witnesses, court reporters and all other necessary and normal investigation, travel, preparation and related expenses of arbitration or litigation, including appeals, bankruptcy pro- ceedings, collechan and other post-judgment procedures 11, Venue, Applicable Law and Right to Jury Trial. Venue for proceedings to enforce this Agreement or any arbitration in any way related to the purchase and sale of this manufactured home shall be in the county in which the Seller resides, This Agreement shall be construed under thelaws"of the state in which .the seller resides and under anyap- plicable laws of the United States of America and lules and regulations promulgated pursuant thereto, Buyer also waives any right to trial by jury in any action arising out of or in any way related to the purchase and sale of this manufactured home, 12, Payment Contemplated Financing M Cash Payments, If this is a cash sale or if a cash down payment is shown, the unexpected unavailability or failure to receive such funds shall not excuse the Buyer nor void the sale, (b) Terms of Financing, If the sale is to be financed, the Buyer must advise the Seller in writing as soon as known or deterrT)ined what are the proposed or anticipated terms of financing, especially as to interest and other finance charges, term, monthly payments and any other financing requirements of the Buyer, Thereafter a security agreement or other consumer credit contract will be executed by the parties and the terms thereof are incorporated herein as Part VI of this contract. To the extent only that the terms of a security agreement or other such subsequent agreement conflict with the terms hereof, this Agreement is deemed modified, corrected and/or superseded, as the case may be, so as to be consistent with such security agreement or other subsequent agreemllnt. Except as so modified, this Agreement remains in fuli' force and effect according to its terms, (c) Source of Financing. The Seller may arrange financing if requested by the Buyer or the Buyer is free to make his own arrangements for financing, If the Buyer arranges for financing and is unable to qualify for or otherwise obtain such cOfltemplaied financing, he shall promptly notify the Seller and Seller shall be given the opportunity to arrange financing on terms consistent with those contemplated by the Buyer and not less favorable to the Buyer, A loan application may be submitted by the Seller to more than one lender. All lending institutions with whom the Seller does business are "equal opportunity lenders" who operate under rules and regulations established by Federal and State law, (d) Facilitation of Financmg. Regardless of what source of financing may be contemplated, the Buyer will immediately apply for financing and will promptly and truthfully fill out all required loan applications, credit reports and financial statements and will execute'and complete such documents, pay such costs and take all other steps as may facilitate the speedy closing of the sale and loan transaction Failure of the Buyer to diligently pursue all steps required for financing shall constitute a material breach of this Agreement. 13. Title. Title to the property shall remarn in the Seller, until the agreed purchase price thereof is paid in full, If a time payment contract or securi1y agreement has been ex, ecuted, legal titie shall remain in the seller or frnarKing institution until all payments which are required to be paid by the Buyer are paid in full, Risk of loss passed to the purchaser in a cash sale at the time title to the property passes to Buyer even though actual delivery may be made at a later date, Risk of loss passes to the purchaser in a credit sale a1 the time of delivery of the unit