SELAH GROUP, LLC | GENERAL TERMS AND CONDITIONS
GENERAL TERMS AND CONDITIONS
Selah Group, LLC, d.b.a. Selah Pools, its employees, affiliates, or sub-contractors ("Selah") agree to provide construction services for the Landowner or Contract Signatory ("Owner") under the Scope Of Work ("Work") described in this agreement, in accordance with the specifications set forth herein, at the agreed project location ("Site").
Owner hereby directs Selah to begin drafting the plans, obtaining construction permits, and proceeding in a manner necessary to begin said Work on the agreed Site, described in the agreement.
PAID WHEN PAYMENT IS DUE
Should any payment due to Selah not be paid when due, then Selah, at its sole option, may declare the entire principal balance of any obligation due to Selah by Owner to be immediately due and payable. Should Selah be required to hire legal counsel to enforce any term or provision of this agreement or to defend any action against Selah by Owner, and if Selah Pools prevails in any such legal action, then Owner agrees to pay all reasonable attorney fees, costs, and expenses incurred by Selah Pools. This agreement is not contingent upon the Owner obtaining financing; it is expressly agreed that the Owner is solely responsible for any such financing and the cost if any, to obtain such financing.
WORK DELAY AND FORCE MAJEURE
Selah is not responsible for delay or failure to perform Work when acts of God, strikes, war, civil unrest, government prohibition, Work stoppage by court order, inability to obtain materials, changes in law or regulations, effects of zoning ordinances or zoning variances, inclement weather, or other reasons beyond its control (Force Majeure.) Additionally, it shall be the Owner's responsibility to provide any necessary variances, easements, waivers, zoning changes, association permits, municipal waivers, and regulatory guidance. Any attorney fees or other costs or expenses incurred by Owner in obtaining any of these terms shall be the sole responsibility and cost of the Owner. Owner shall cooperate with Selah with respect to all permit applications and regulatory compliance of any kind. In some cases, Selah will provide material support on the Owner's behalf to overcome regulatory, landlord, or HOA compliance, for example, but in no case does Selah assume any liability by participating on the Owner's behalf on such matters.
Any equipment or utilities will be installed in a location designated by the Owner. Even though Selah may assist Owner in locating the equipment or utilities, Owner warrants and represents to Selah that Owner is familiar with the location of all property lines and that the Worksite herein agreed upon is within said property lines, and that no part of the Work, equipment or utilities, once installed, will be upon the property of another, is in conflict with an easement and is free and clear of any buried utilities outside of an easement. Owner hereby agrees to defend, indemnify, and hold harmless Selah from any suit, action, or claim of Owner or any third person, firm, or corporation for the location of said Work and the use by Selah of any access areas in the place(s) designated by the Owner. Owner is responsible for any cost in connection with locating, removing, repairing, or relocating any underground or above-ground utilities.
TEMPORARY ACCESS AND WORKSPACE
Should Selah require or Owner desire the temporary use or access to conduct Work on any property that is not lawfully controlled by Owner, then Owner will secure written permission for such use or access from the property landowner(s) before the use or access of such property and solely responsible for any costs for said use. Permission agreements, terms, or stipulations of said temporary use would be delivered to Selah for review and approval before said use. In any case, Owner agrees to indemnify Selah and hold Selah harmless for any damages, suits, claims, or other actions brought by landowner(s), or any third party concerning the use thereof by Selah.
TERM OF COST ESTIMATE
Cost estimates set forth in this agreement will be valid and binding for thirty (30) days from the date of this agreement or in the case of any changes, amendments, and additions ("Overages") for a period of ninety (90) days concerning such Overages. If Work is not commenced within thirty (30) days from the date of this agreement or if any Work is postponed for more than sixty (60) days at the request of the Owner, or because of events or causes outside the control of Selah, then the cost estimates shown on this agreement shall not be binding upon Selah and Owner agrees to renegotiate the estimates in this agreement should Selah make such request.
BASIS OF ESTIMATE
Selah and Owner agree that the estimate quoted by Selah herein is based on the factual assumptions by Owner that the Work site has the adequate load-bearing capacity and contains no low-density alluvial fill or fill ground of any type whatsoever; has no earth or fill ground movement has no hard rock formation or boulders that will interfere with any excavation of the site; contains no cesspool, septic tank, gas line, water line, drainage line, irrigation line, electrical lines, natural gas lines, or other utilities, or manmade or natural obstructions not obvious from an inspection of the surface of the site; has no underground or surface water conditions which should interfere with the construction or operation of the completed Work and related equipment requires no jackhammer Work or explosives to excavate site; has adequate access for all trucks and equipment necessary for the excavation of the site and the construction and installation and operation of all temporary or permanent equipment and utilities. Owner and Selah hereby agree that should any of the foregoing assumptions of fact be found incorrect, and if any additional Work or materials are required to complete the Work contemplated under this agreement, the same may be performed, provided, or installed by Selah and an Overage shall be added to the estimate stated in this agreement, which additional amount Owner agrees to pay Selah. Alternatively, in the event that any foregoing assumptions of fact are incorrect, Selah, at its sole option, may terminate this agreement with no further liability or obligation to Owner, except that Owner and Selah agree that if Selah has begun Work, Selah will suffer actual damages in an amount which would be impracticable to ascertain at the time. Accordingly, Owner and Selah agree that in such an event, Owner shall be liable to Selah in the amount of $5,000.00 as liquidated damages. Alternately, Owner and Selah may, by mutual consent in writing, amend the terms of this agreement.
OWNER AGREES THAT SELAH IS NOT RESPONSIBLE FOR DAMAGES OR UNFORESEEN CONSEQUENCES OR WORK EFFORT ON ANY DRAINAGE, IRRIGATION, LANDSCAPING, LAWNS, SHRUBS, DRIVEWAYS, CURBS, SIDEWALKS, SEWERS, SEPTIC TANKS, FLAGS OR FLAGPOLES, FOUNTAINS OR STATUES, ORNAMENTS OF ANY KIND, LIGHTING OR LOW VOLTAGE LIGHTING, PATIOS, DECKS, STRUCTURES, IMPROVEMENTS OR APPURTENANCES, IN THE WORK OR ACCESS AREA. NOR TELEPHONE, INTERNET, TELEVISION, OR OTHER LOW VOLTAGE UTILITIES, NOR PROPANE, NATURAL GAS, OR HIGH VOLTAGE POWER UTILITIES, NOR WELLS, SUMPS, OR MUNICIPAL WATER SYSTEMS. NOR VEHICLES OR RECREATIONAL VEHICLES OF ANY KIND. THE OWNER IS RESPONSIBLE FOR TAKING SUCH ACTION AS OWNER DEEMS NECESSARY TO PROTECT ANY AND ALL FROM DAMAGE.
Owner agrees that on the date Selah commences Work, Owner will provide Selah a site free of obstructions and debris. Unless specifically set forth in this agreement, Selah will not be required to perform any grading of the Owner's property, nor demolition or removal of any natural or other obstructions to the Work.
LIMITATIONS TO THE WORK
Selah will not be responsible for any conditions on the Work product caused by existing or proposed improvements, and any additional engineering and construction Work required in that regard will be at the sole cost and expense of the Owner. This agreement does not provide for the installation of any fence, walk, deck, patio, drywall, waste system, foundation Work, or the installation of any other home or structure foundation improvements or appurtenances unless otherwise specified in this agreement.
OVERAGES AND ADDITIONS TO THE WORK
Any Work in addition to that specifically set forth in this agreement should be authorized in writing by Owner and accepted by Selah before the commencement of such additional Work. Payment for such additional Work will be considered an Overage. All Overage is due at the time Work is authorized or upon completion of said Work, if so agreed to by Selah. At no time should Owner direct Workers on the site to make changes or conduct Work of any kind, whether the Work is described herein or not. In the case of an Overage directed by the Owner and conducted without written authorization, Owner agrees to pay Selah for the additional Work at a price determined by Selah at any time after the Work is begun.
ADDITIONS AND CHANGES OF UTILITY OR SERVICE
If deemed necessary or at the Owner's request, an increase or upgrade of electrical panel breakers or other utility services, or removal of any wiring, equipment, or other utility supplies, unless specifically provided for in this agreement, is to be paid as an Overage by Owner.
MANUFACTURERS & MATERIALS WARRANTY
Equipment and materials installed as part of this agreement are warrantied exclusively by the equipment manufacturer or material supplier. Service, repair, or replacement of such equipment or material not covered by the manufacturer's warranty is solely at the Owners discretion and expense. Any repair or replacement required due to mistreatment or neglect shall be at Owner's expense. Title and ownership of any such equipment or material, and any expense associated with its use, operation, damage, loss, or theft, transfer from Selah to Owner at the time the equipment or material is delivered to the Site.
Selah will provide Owner with instructions concerning the moist curing (Conditioning) of a concrete or Gunite structure Work. Owner will be responsible for following these Conditioning instructions and the expense of any issues that may occur if the instructions are not followed. Owner will be responsible for filling a pool or spa, or other concrete or Gunite structure as part of the Work product described in this agreement at a time instructed by Selah. Please note that some municipalities may waive the utility costs of filling a pool when the Owner advises the utility authority of their intention to fill a pool. Please consult your local municipality guidelines immediately to determine if and how you, as the Owner, may mitigate these costs.
PRINCIPAL WORK AUTHORITY
Selah shall not be responsible for, and Owner agrees to and does hereby hold Selah harmless for any damages relating to the manner or Work performed on the Owner's property by persons other than Selah, its agents, or representatives.
Owner agrees that it shall not, during the Term or after the termination or expiration of this agreement, use any form of social media, the internet, the world wide web, or print, traditional or digital media, or any other form of communication to insult, disparage, or speak negatively of Selah, its owners, its owners’ family, officers, directors, employees, affiliated companies, or the services provided herein. Any violation of this paragraph is a material breach of this agreement. Further, Owner agrees that for the duration of the Work, the Site is considered a Workplace and, as such, will be free of a hostile work environment affecting the ability of the Selah team to perform its Work.
In all cases, any cost estimates delivered in preparation for this agreement, this agreement, or plans, permit drawings, electronic renderings, and presentations, or any Work product arising from the engagement of Selah and Owner, remain the sole property of Selah and as such are not authorized for reproduction or distribution without Selah’s written consent. All plans, electronic renderings, or sketches of any kind are Artists Concepts (Concepts), are Copyright protected, and remain the property of Selah. Concepts, plans, or renderings may include features or depictions that are not offered as Work, materials, or products being offered for sale or otherwise deliverables in this agreement. Owner grants Selah all right, titles, and interests in all photographic images and video or audio recordings made by Selah for promotional or other purposes, releasing all copyright or other claims to such materials. Further, Owner grants permission for such photography or videography to be conducted before, during, or for a period of one year after the Work is completed.
Selah reserves the right to modify any design or Work as it deems necessary, up to and including ad. hoc. adjustments, also known as Field Modifications.
USE OF EXISTING MATERIALS
Owner may request, and Selah, at its discretion, may attempt to use natural or man-made materials already in the Owner’s possession. These existing materials, if used, will be on an “as is, where is” basis. Any extraordinary effort required will result in an Overage charge, no warranty claims will apply, and no effort to match colors, textures, or other attributes will be made.
Owner is responsible for maintaining barriers to entry or other means to prevent unauthorized access to the Site during days and hours when Work is not being conducted on the Site. Owner agrees to maintain the security of their Site and property, including Selah equipment, tools, personnel, and materials, as they would before and after Work is completed.
SAFETY IS PARAMOUNT
Owner is solely responsible for maintaining safety and barriers to access any portion of the Site before, during, and after the duration of the Work. Accidents, injury, loss, theft, or other unintended consequences arising from the Work contemplated in this agreement are solely the responsibility of Owner. Child and pet safety are of critical importance. Any and all Work areas, including access and routes to and from the Site must be protected by the Owner from exposure to children, pets, or trespassers. Owner must be alert and must immediately communicate all potential hazards or observations of unsafe conditions to Selah. If you need help securing your Site, or there are special considerations, please communicate and coordinate the proposed solutions with Selah.
When the Work is complete, Selah will offer a one-time and on-Site training overview for the operation of Owners equipment. In addition to training, the operating and maintenance literature of the major equipment is made available to the Owner. Beyond training and materials, Selah has service professionals and extended training available to you, the Owner. We encourage our Owners to participate in the training provided and to study the operations manuals, etc., for their equipment, as you are ultimately responsible for the life, safety, and effectiveness of the equipment’s operation.
PET AND ANIMAL SAFETY
The Owner is solely responsible for the safety and confinement of pets and livestock (Domestic Animals.) Selah strongly encourages the Owner to make provisions for keeping Domestic Animals away from the Site for the duration of the Work. Temporary fencing, guards, or other partitions should be employed by Owner to prevent animals of all kinds from entering the Site or escaping their property at any time for the duration of the Work. Selah is not responsible for pets or livestock injury, escape or loss before, during, or after Work on the Owners Site. Owner is responsible for any harm caused or injury or loss associated with their Domestic Animals.
Homeowners Associations, neighbors, materials spoilage and disposal. The covenants or agreements that may exist or arise between you as the property Owner and any Homeowners Association (HOA), your neighbors, or any other regulatory body are between you and that party. Selah cannot represent, nor will it engage directly on your behalf, any agreements or representations made to an HOA or neighbor. Compliance with HOA guidelines, permit applications, permits, etc. is solely the responsibility of the property Owner. Materials and spoilage approved disposal (Disposal), particularly in excavation or demolition Work on the Site, are the responsibility of the Owner. Selah will abide by special requirements for proper Disposal of such materials only when the Owner specifically sites in this agreement these special requirements and addresses any extraordinary cost associated with the special requirements. Beyond special requirements, an Owner may request that spoilage be kept on their property and then be responsible for the safe and compliant management of the spoilage.
WARRANTY VOID AND WORK STOPPAGE FOR NON-PAYMENT
In the case of non-payment for any portion of the Work, all non-manufacturer warranties are void, and any repairs or other Work efforts will cease until payment is received in full.
REMEDY FOR BREACH
Owner agrees that monetary damages will not be a sufficient remedy for any breach or default of this agreement. Accordingly, Selah is entitled to seek specific performance, injunctive relief, equitable relief, or liquidated damages as a remedy for any such breach or default, and Owner further agrees to waive any requirement for the securing or posting of any bond in connection with such remedy. Due to the inherent difficulty of estimating Selah’s actual damages if Owner breaches or fails to fulfill any obligations under this agreement, the defaulting party agrees to pay liquidated damages to the other party in the amount of Seventy-Five Thousand Dollars ($75,000). The parties understand and agree that this remedy for breach is compensatory and not punitive in nature.
RIGHT TO ARBITRATION
If pursuant to the receipt of a notice of complaint, Selah makes a written offer to repair or of settlement that Owner considers to be unreasonable or if any other dispute arises out of or is connected with this agreement, the parties agree to settle such dispute, controversy, or claim by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration hearing shall take place in Fort Worth, Texas, before a panel of one arbitrator. The parties agree to mutually cooperate in selecting the arbitrator to be used, provided, however, that the arbitrator shall be a lawyer having at least five years of experience in commercial law. No demand for arbitration may be made after the date when the applicable statute of limitations would bar such claim or dispute. The arbitrator is not authorized to award the prevailing party: (a) an amount in excess of the economic damages proximately caused by a defect as measured by (i) the reasonable cost of repairs necessary to cure any construction defect; (ii) the reasonable and necessary cost for the replacement or repair of any damaged goods at the residence; (iii) reasonable and necessary engineering and consulting fees; (iv) the reduction in current market value, if any, after the construction defect is repaired; and (v) reasonable and necessary attorney's fees; (b) punitive damages; or (c) other damages not measured by the prevailing party’s actual damages. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall require disclosure of non-privileged materials, including information in digital format, relevant to any parties’ claim or defense, subject to limitations imposed by the arbitrator based on reasonable expense, duplication, and undue burden. If the arbitrator determines that a party has generally prevailed in the arbitration proceeding, then the arbitrator shall award to the prevailing party its reasonable expenses related to the arbitration, including filing fees, arbitrator compensation, attorney’s fees, and legal costs. If the arbitrator makes a finding that the complainant who initiated the proceeding based on groundless claims brought in bad faith or for purposes of harassment, then the arbitrator shall award the other party its reasonable expenses related to the arbitration, including filing fees, arbitrator compensation, attorney’s fees, and legal costs. The parties shall maintain the arbitration proceedings and arbitration award as strictly confidential, except as otherwise required by court order or as is necessary to confirm, vacate or enforce the award and for disclosure in confidence to the parties respective attorneys, tax advisors, and Selah senior management and to family members of a party who is an individual.
This agreement, its supporting documents, material selections, and any attached plans and specifications constitute the entire agreement between Owner and Selah, and there are no other agreements, either written or oral, between said parties. If there is a conflict between any descriptions stated in plans, permit applications, or specifications and the descriptions in this agreement, the descriptions and terms of this agreement will control. Except for Field Modifications, this agreement, the plans, or specifications issued after this agreement may only be changed or amended in writing and signed by both parties hereto. In no case are text messages, email messages, or other informal communications initiated by Owner suitable substitutes for an amendment to this agreement.
SEVERABILITY OF THIS AGREEMENT
In case any provision of this agreement is, for any reason, held invalid or unenforceable in any respect, the invalidity or unenforceability will not affect any other provision of this agreement, and this agreement will be construed as if the invalid or unenforceable provision had not been included in this agreement.